a. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


1.25 


"-  ilia 
*z  m 


1.4 


IM 

22 

IM 

1.6 


Photographic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTI^R, NY.  M580 

(716)  872-4503 


\ 


^V 


^ 


■1>' 


c\ 


\ 


6^ 


«.*. 


%^ 


<i; 


^S 


k~" 


V 


L<? 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  th!s 
copy  which  may  be  bibliographicaily  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


D 
D 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 


I     I    Covers  damaged/ 


Couverture  endommag6e 

Covers  restored  and/or  laminated/ 
Couverture  restaur6e  et/ou  peliiculAe 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  g6ographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  bluck)/ 
Encre  de  couleur  (i.3.  autre  que  bleue  ou  noire) 


I      I    Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
ReilA  avec  d'autres  documents 


Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serr6e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  int6rieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutAes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  iorsque  cela  Atait  possible,  ces  pages  n'ont 
pas  At6  filmAes. 

Additional  comments:/ 
Commjntaires  supplAmentaires; 


L'Institut  a  microfilm^  le  meilleur  exempiaire 
qu'il  lui  a  6t4  possible  de  se  procurer.  Les  details 
de  cet  exempiaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibilographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mdthode  normale  de  filmage 
sont  indiqu6s  ci-dessous. 


I      I   Coloured  pages/ 


n 

D 
D 


D 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmi  au  taux  de  reduction  indiquA  ci-dessous. 

10X  14X  18X  72X 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagdes 

Pages  restored  and/or  laminated/ 
Pages  restauries  et/ou  peiiicul6es 

Pages  discoloured,  stained  or  foxed/ 
Pages  d6color6es,  tachetAes  ou  piqu6es 

Pages  detached/ 
Pages  d^tachdes 


Tl 
to 


rri    Showthrough/ 


Transparence 


I      I    Quality  of  print  varies/ 


Quality  inigaie  de  I'impression 

Includes  supplementary  materii 
Comprend  du  materiel  supplimentaire 

Only  edition  available/ 
Seuie  Edition  disponible 


I      I    Includes  supplementary  material/ 
r~n    Only  edition  available/ 


Tl 

P< 
of 
fil 


Oi 
be 
th 
8i( 
ot 
fir 
si( 
or 


Th 
sh 

Til 
wl 

Ml 
dif 
en 
be 
rig 
rer 
mc 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refiimed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure. 
etc..  ont  6t6  filmAes  ^  nouveau  de  fapon  h 
obtenir  la  meiileure  image  possible. 


26X 


30X 


12X 


16X 


20X 


24X 


28X 


n 

32X 


Eua 


ails 

du 

idifier 

une 

nage 


Tha  copy  filmad  hera  has  baan  raproducad  thanks 
to  tha  ganarosity  of: 

Library  Division 

Provincial  Archives  of  British  Columbia 

Tha  imagas  appaaring  hara  ara  tha  bast  quality 
possibia  considaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spacifications. 


Original  copias  in  printad  papar  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  kJustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contuin  the  symbol  — ♦>  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


L'exemplaire  film*  fut  reproduit  grAce  A  la 
ginAroaitA  da: 

Library  Division 

Provincial  Archives  of  British  Columbia 

Las  images  suivantas  ont  4t4  raproduites  avac  la 
plus  grand  soin,  compta  tenu  de  la  condition  at 
da  la  nattet«  de  l'exemplaire  film«,  et  en 
conformity  avac  las  conditions  du  contrat  da 
filmage. 

Las  axemplairas  originaux  dont  la  couverture  en 
papier  est  imprim^e  sont  filmis  en  commengant 
par  la  premier  piat  et  en  terminant  soit  par  la 
derniire  page  qui  comporte  une  empreinte 
d'impression  ou  d'iMustration,  soit  par  la  second 
plat,  salon  la  cas.  Tous  las  autres  axemplairas 
originaux  sont  filmAs  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  jd'illustration  et  en  terminant  par 
la  derniira  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaftra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  la  symbols  — ^  signifie  "A  SUIVRE  ",  le 
symbols  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuveiu  dtra 
film6s  d  des  taux  de  reduction  diff^rents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  cliche,  il  est  film*  A  partir 
de  I'angle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaira.  Les  diagrammes  suivants 
iilustrant  la  mAthode. 


rata 
) 


Glure. 


3 


1 

2 

3 

1 

2 

3 

4 

5 

6 

'  ^ ■.    "'  Il^-'WWIIP" 


•m^mmmm^y^ 


I 


REVISED  EDITION 


Pacific  Coast 


COLLECTION  LAWS 

A  SUMMARY  OF  THE 

LAWS  OF  CALIFORNIA,  NEVADA,  OREGON,  WASHINGTON 
TERRITORY,  IDAHO,  MONTANA,  UTAH,  WYOMING, 
ARL20NA  AND   BRITISH   COLUMBIA,   IN- 
CLUDING INSOLVENCY  I  \WS ; 


ALSO 


THE  JURISDICTION  OF  U.  S.  COURTS 


WITH 


THE    NAMES    OF  RELIABLE   ATTORNEYS    IN   THE   PRINCIPAL 
•       CITIES  AND  TOWNS  THROUGHOUT  THE  PACIFIC  COAST. 


BT 


J.  H.  JELLETT 

Attornbt  at  Law 


I 


i 


SAN   FRANCISCO: 
1878 


\A{a) 

3^^ 


V  -: 


Entered  according  to  Act  of  Congress  In  the  year  1878,  by 

J.  H.  JELLETT, 

In  the  office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 


M 


■f  /Niti.i  'V.  Vim  III  1 1    ''•^mmmmmm^mmmmmmmmaimmim 


**' I  I lurnw 


PREFACE. 


Pacific  Coast  Collection  Laws"  is  revised  wifl  • 

<'oncisely    present  to  those  interested    thl  I   '  '^'^  *" 

States  and  Territories  as  they  stand     ';   T        ^'^  "^^^^'^ 
National  Bankruptcy  Act.     tI     "  o    T  """^  ^'  ^^^ 

appear  therein  has  also  heen  car^lly  :rd%l!T^^^^^^^^ 
Pract..,  attorneys  W  kindly  assisted  in  2^^:^^' 

DOLPH,  BROKAiraH,  DOLPH  &  SxmOK p,„.,       ^    ^^ 

Bishop  «&  Sabin i^oitland,  Oregon. 

Lewis  BuRNEs -Eureka,  Nevada. 

Hon.  James  K.  Kennedv."^. ! Walla' Wall7w^^^'^'  ^'*^'  ^*"^- 
W.  E.  CuLLEN ^''  Washington  Territory. 

E.  P.  Johnson Helena,  Montana. 

Jonas  W.Brown     ^*^^:^enne,  Wyoming. 

Bush  &  Wells Victoria,  B.  C. 

Prescott,  A.  T. 


San  Francisco,  September,  1878. 


J-  H.  JELLETT. 


:;4165 


I 


CONTENTS. 


Part  I. 
ATTORNEYS. 


Part  II. 


JURISDICTION  OF  U.  S.  COURTS. 

'                                                                              Page 
Ohaptje  I.     Courts  and  their  Jurisdiction 19 


Part  III. 
CALIFORNIA. 


Chapter  I.     Courts  and  their  Jurisdiction 21 

II.     Terms  of  Courts,  When  and  AVhere  Held 24 

III.  Place  of  Trial  of  Civil  Actions 27 

IV.  Limitation  of  Civil  Actions 31 

V.     Parties  to  Suits— Commencement  of  Actions .34 

VI.     Form  of  Civil  Actions — Pleadings 38 

VII.     Attachments 43 

VIII.     Claim  and  Delivery  of  Personal  Property 48 

IX.     Arrest  and  Bail 50 

X.     Injunctions 52 

XI.     Judgments  and  Judgment  Liens 52 

XII.     Execution — Sale  and  Redemption 59 

XIII.  Proceedings  Supplementary  to  E:  :ecution 66 

XIV.  Costs 68 

XV.     Appeals  in  Civil  Actions 69 

XVL     New  Trials 74 

XVII.     Estates  of  Deceased  Persons 75 

XVIII.     Descents 80 

XIX.     Liens  of  Mechanics  and  others  upon  Real  Property 84 


» 


CONTENTS.  5 

Paiib 

XX ,     Liens  for  .Salaries  aiui  Wages 86 

XXI.     Ar])itratioiis 88 

XXII.     Homesteads 89 

XXIII.  Corporations 90 

XXIV.  Mode  of  taking  Testimony  of  Witnesses   92 

XXV.     Judieial  Reoords,  How  Proved 94 

XXVI.     Acknowledgments 95 

XXVII.     Partnerships 99 

XXVIII.     Married  Women 102 

XXIX.     Minors 104 

XXX.     Stoppage  in  transit 105 

XXXI.     Bills  of  Lading 105 

XXXIL     Interest 106 

XXXIII.  Common  Carriers ; 170 

XXXIV.  Mortgages  of  Personal  Property 107 

XXXV.     Pledg". 109 

XXXVI.     Guarantee  and  Suretyship 110 

XXXV^L     Sale 113 

XXXVIII.      Contracts 114 

XXXIX.     Negotiable  Instruments 115 

XL.     Principal  sind  Agent 123 

XLI.     Fraudulent  Instruments  and  Transfers 124 

XLII.     Assignments  for  the  benefit  of  Creditors 124 

XLIIL     Insolvency 126 


I 


Part  IV. 
NEVADA. 

Chapter  1.     Courts  —Jurisdiction  and  Tenns  of  Courts 141 

II.     Time   allowed    to  Answer — Service    by   Publication — Place 

of  Trial 145 

III .  Limitation  of  Actions ' 146 

IV.  Attachments 148 

V.     Arrest  in  Civil  Actions 149 

VI.     Judgments  and  Judgment  Liens 150 

VII.     Executions,  Exemptions,  Sale  and  Redemption 150 

VIII.     Proceedings  Supplementary  to  Execution 152 

IX.     Security  for  Costs 153 

X.     Appeals 153 

XI.     Estates  of  Deceased  Person.s 154 

XII.     Homesteads 155 

XIII.  Of  Witnesses  and  Depositions 156 

XIV.  Judicial  Records,  How  Proved 159 


I  > 


6  CONTENDS. 

I'AOK 

XV,     Acknowledgments I(j0 

XVI.     Affidavits,  before  whom  to  be  taken 161 

XVII.     Limited  Partnerships 161 

XVIII.     Married  Women 162 

XIX.     Corporations 162 

XX.     Chattel  Mortgages 163 

XXI.     Interest  and  Usury 163 

XXII.     Promissory  Notes  and  Bills  of  Excliange 164 

XXIII.  Mortgages 164 

XXIV.  Joint  Debtors,  Reiease  of 165 

XXV.     Insolvent  Debtors 165 


Part  V. 
OREGON. 


Chapter  I. 

II. 

III. 

IV. 

V. 

VI. 

\il. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 

XXIV. 

XXV. 


Courts  and  their  Jurisdiction J69 

Terms  of  Courts,  When  and  Where  Held 1 70 

Commencement  of  Suits 172 

Place  of  Trial  of  Civil  Actions 173 

Limitation  of  Actions j  73 

Attacliments 1  'j5 

Arrest  in  Civil  Actions 175 

Judgments  and  Judgment  Liens 176 

Executions,  Exemptions,  Sale  and  Redemption 177 

Proceedings  Supplementary  to  Execution 178 

Security  for  Costs lyg 

Appeals I'jQ 

Estates  of  Deceased  Persons iso 

Descent  of  Real  Property igi 

Descent  of  Personal  Property 132 

Homesteads  and  Dower 133 

Depositions j  33 

Judicial  Records 135 

Acknowledgments 135 

Limited  Partnerships igg 

Married  Women Igy 

Corporations jgg 

Chattel .  Mortgages igg 

Interest  and  Usury jgg 

Insolvency j  go 


CONTENTS.  »  < 

Part  VI. 
IDAHO. 

Pads 

Chapter  I.     Courts,  Their  Jurisdiction  and  Terms 191 

II.     Commencement  of  Actions ^ 192 

III.  Place  of  Trial  of  Civil  Actions 193 

IV.  Limitations  of  Civil  Actions 194 

V.     Attachments 196 

VI.     Arrest  in  Civil  Actions 197 

VII.     Judgments  and  Judgment  Liens 198 

VIII.     Executions,  Exemptions,  Sale  and  Redemption 199 

IX.     Proceedings  Supplementary  to  Execution 201 

X.     Security  for  Costs 202 

XL     Appeals  in  ( Jeneral 202 

XII.     Homesteads 203 

XIII.  Estates  of  Deceased  Persons 204 

XIV.  Depositions 207 

XV.     Judicial  Records .208 

XVI.     Acknowledgments 208 

XVIL     Limited  Partnerships 209 

XVIIL     Married  Women 210 

XIX.     Corporations 211 

XX.     Cliattel  Mortgages 212 

XXI.     Interest  and  Usury 213 

XXIL     Affidavits 213 

XXIII.  Sole  Traders 214 

XXIV.  Insolvent  Debtors 216 


I 


Part  VII. 
WYOMING.  ^ ''f/t/::?^  '■"■' 

Chapter  I.     Courts  and  their  Jurisdiction 221 

II.     Terms  of  Courts,  When  and  Where  Held 222 

III.  Commencement  of  Actions,  Time  to  Answer,  Place  of  Trial. 222 

IV.  Limitation  of  Actions 223 

V.     Attachments 223 

VI.     Arref't  in  ( 'ivil  Actions 225 

VII.     Judgment  Liens 226 

VIII.     Executions,  Sale,  Redemption  and  Exemptions 226 

IX.     Proceedings  in  aid  of  Executions 227 

X.     Security  for  Costs 228 

XL     Appeals '. 228 


8  '                               OONTENTH. 

Paok 
XII.'     Kstates  of  Doceased  Persons 228 

XIII.  l^cscents  and  Distrilmtion  of  Property 229 

XIV.  Depositions 232 

XV.     Judiciul  lleeords 233 

XVI.     Acknowledgments 233 

XVII.     Limited  Partnership 234 

XVIII.     Married  Women 236 

XIX.     Chattel  Mortgages 236 

XX.     Interest  and  Usury 236 

XXI.     Assignments 236 

Part  VIII. 
MONTANA. 

CnAFTKR  I.     Courts,  their  Jurisdiction  and  Terms 239 

II.     Time  allowed   Defendant  to  answer— Place  of  Trial  of  Civil 

Actions 240 

III.  Limitation  of  Actions 241 

IV.  Attachments — Arrests  in  Civil  Cases 242 

V.     Judgment  Liens— Executions,  Exemptions,  Sale  <ind  Kedemp- 

tion 243 

VI.     Proceedings  Supplementary  to  Executions 244 

VII.     Security  for  costs — Appeals ....    245 

VIII.     Estates.of  Deceased  Persons 245 

I,  IX.     Depositions — Judicial  Records — Acknowledgments 246 

X.     Limited  Partnerships 247 

XI.     Married  Women 248 

XII.     Corporations^-Chattel  Mortgages — Interest 248 

XIII.     Insolvency 249 

Part  IX. 


WASHINGTON    TERRITORY. 

Ch.\ptkr  I.  Courts  and  their  Jurisdiction 251 

II.  Terms  of  Courts,  When  and  Where  Held 252 

III.  Commencement  of  Suits,  Time  Allowed  to  Answer 253 

IV.  Place  of  Trial  of  Civil  Actions 255 

V.  Limitation  of  Actions , 255 

VI.  Attachments     ; 257 

VII.  Arrest  in  Civil  Actions 258 

VIII.  Judgments  and  Judgment  Liens 260 


CONTENTS. 


9 


I'AllK 

IX.     Executions,  Exemptions,  Sales  and  Hedeniptious 2()0 

X.  Proceedings  Supplementary  to  Execution 2G3 

XI.  Security  for  Costs 2()4 

XII.  Appeals  and  Writs  of  Error 2()4 

XIII.  Estates  of  Deceased  Persons 265 

XIV.  Homesteads 26« 

XV.  Depositions 266 

XVI.     Judicial  Record  of  other  States,  How  Provod 268 

XVII,     Acknowledgments 268 

XVIII.     Limited  Partnerships 270 

XIX.     Married  Women 270 

KX.     Corporations 270 

XXI.     Chattel  Mortgages ?''l 

XXII.     Interest 271 

XXIII.     Insolvency 272 

Part  X.  V 

ARIZONA.  ' 

Chapter  I.     Courts  and  their  Jurisdiction 277 

II.     Terms  of  Courts,  When  and  Where  Held 279 

III.  Commencement  of  Suits 280 

IV.  Place  of  Trial  of  Civil  Actions 281 

V.     Limitation  of  Actions 282 

VL     Attachments 284 

VII.     Arrest  in  Civil  Actions 285 

VIII    Judgment  and  Judgment  Liens 286 

IX.     Executions,  Exemptions,  Sale  and  Redemption 287 

X.     Proceedings  Supplementary  to  Execution 288 

XI.  Estates  of  Deceased  Persons 289 

XII.  Affidavits  and  Depositions 290 

XIII.  Acknowledgments 291 

XIV.  Married  Women 292 

XV.     Chattel  Mortgages 293 

XVI.  Interest 294 

XVIL     Bills  of  Exchange a 294 

XVIIL     Insolvency 296 


Part  XI. 
UTAH. 

Chapteh  I.     The  Courts  and  their  Jr  isdiction 297 

II.     The  Terms  of  Courts,  and  Places  of  Holding  same 298 


10  CONTENTS. 

Page 

III.  Commencement  of  Suits,  and  Time  allowed  Defendants  to 

Plead 299 

IV.  Limitations  of  Actions 299 

V.     Attachments 300 

VI.     Arrests  in  Civil  Actions 300 

VII.     Judgments  and  Judgment  Liens 301 

VIII.     Executions,  Exemptions,  Sales  and  Redemption 302 

IX.     Proceedings  in  Aid  of  Executions 304 

X.     Security  for  Costs 305 

XI.     Appeals 306 

XII.     Estates  of  Deceased  Persons ." 307 

XIII.  Homesteads 308 

XIV.  Depositions 309 

XV.     Judicial  Records,  How  Proven 311 

XVI.     Acknowledgments 312 

XVII.     Partnerships 313 

XVm.     Married  Women 314 

XIX.     Corporations 314 

XX.     Chattel  Mortgages 315 

XXI.     Interest  and  Usury 315 

XXII.     Insolvency 315 


Part  XII. 
BRITISH  COLUMBIA. 


Chapter  I.     Courts,  their  Jurisdiction  and  Terms 317 

II.     Commencement  of  Suits 318 

III.  Limitation  of  Actions 319 

IV.  Attachments — Arrest  in  Civil  Actions 320 

V.     Judgments  and  Judgment  Liens 320 

VI.     Executions,  Exemptions,  Redemption,  Sale  : 321 

VII.     Security  for  Costs 321 

Vm.     Appeals 321 

IX.     Estates  of  Deceased  Persons 322 

X.     Homesteads 323 

XI.     Depositions 323 

XII.     Judicial  Records — Acknowledgments   : 323 

XIII.  Limited  Partnerships 324 

XIV.  Married  Women 324 

XV.     Mortgages 325 

XVI.     Interest  and  Usury 326 

XVIL     Land  Laws 32S 


PART  I. 


ATTORNEYS 


THE  FOLLOWING  ARE  KECOMMENDED  J 


AS  RELIABLE. 


California. 


County. 


Rksidkncb. 


Namk. 


^^ameda  Oakland.. 

Livermore 


Marcus  P.  Wiggin. 
E.  Anbury. 


Amador 


^^^'^^^nton J.' R.  Palmer. 

H  Also  Notary  Piihlii- 

'-^^^waTds JJoelRusseii 


Butte 


Calavaras .  . . . . 


•^^ckson I  J.  M.  Porter. 

Sutter  Creek...  J.  N.  Randolph. 

^^«vi"e John  C.Gray. 

^^^^^ Cifford  &  Lusk. 

Mokel'ne  Hill  0.  F.  Tibbits. 


^^^iisa Cohisa  ....        'John  T    Ho    •     . 

Contra  Costa...|Martinez  ..Z^  &  i"'*^"" 


12 


ATTORNEYS. 


[Part  1. 


C  ALIFORNI  A—  Ccmtimied. 


County. 

Hkbidbnce. 

Namb. 

Contra  Costa.. 

Antioch 

James  T.  Cruikshank. 

Del  Norte .... 

El  Dorado 

Fresno 

Cresceiit  City.. 

Placerville 

Fresno 

W.  A.  Hamilton. 
George  G.  Blanchard. 
H.  S.  Dixon. 

Humboldt 

Eureka 

J.  A.  Watson. 

Invo 

Independence . 
Bakersfield .... 

Lakeport 

Susan  ville 

Los  Angeles... 

San  Rafael 

Mariposa 

Ukiah 

Real  Estate  and  Collector. 

Reddy  &  Conklin. 
J.  W.  Freeman. 

Kern 

Lake 

Lassen 

A.  P.  McCarty. 
Chapman  &  Hendricks. 
Henry  T.  Hazard. 
Hepburn  Wilkins. 
L.  F.  Jones. 
Thomas  L.  Carothers. 

Los  Angeles... 
Marin 

Mariposa 

Mendocino  .... 

Merced 

Merced 

Samuel  C.  Bates. 

Modoc 

Mono 

Dorris  Bridge.. 
Bodie 

Collector. 

F.  W.  Ewing. 
Frank  Owen. 

Monterey  ... 

iS.ilinas 

N.  G.  Wyatt.  " 

Part  l.J 


ATTORNEYS. 

GA.LIFOmiA~Chnimued. 


County. 


Rbsidknce. 


Name. 


Napa 
Napa., 


^""^^ R.  Burnell. 

^*-  H^^e"« W.  A.  C.  Smith. 

Nevada INevada  PiHr     t       r  ^  ,, 

•  .pevaaa  uty...  Jno.  [.  Caldwell. 
Grass  Vallej...  A  J.  Ridge. 

'^™^^^ C.  F.  McGlashan. 

James  Moore. 


^^acer jophir, 

Plumas 


(Near  Auburn.) 

^"^^cv W.  W.  KelW 

cc 

Sacramento  ...Sacramento....  Tubbs  &  Cole. 

^oWister jW.  G.Lee. 

Rolfe,  Curtis  &  Brown. 


San  Benito. 


San  Bern'di'o.jSan  Bern'di'o 

San  Diego jsan  Diego 

San  Joaquin...  Stockton.... 


Chase  &  Leach. 
J.  M.  Hogan. 


San  Luis  Obis-|San  Luis  Obis- 

^"  '     P^ JLouis   McMurtrv. 

San  Mateo...., 

.Santa  Barbara 


Redwood   CitjJGeo.  W.  Fox. 

Santa  Barbara  Richards  &  Boyce. 

Santa  ClarP..|san  Jose J.  T.  Malone. 

^'"'^^•^"^ 'santaCruz |e.  L.  Williams. 


18 


14 


ATTORNEYS. 

C  ALIFORNI  A—  Continued. 


[Part  1. 


County. 

RB8IDRN0B. 

Name. 

Santa  Cruz 

Watsonville . . . 

Kittridge  &  Halstead. 

Shasta 

Shasta 

Clay  W.  Taylor. 

E.  Barry. 
0.  F.  Hakes. 

Sierra 

Downieville.... 
Loyalton 

Siskiyou 

Yreka  .  

Etna 

E.  H.  Antenreith. 
J.  S.  Beard. 

Solano 

Suisun 

Joseph  McKenna. 
E.  S.  Mudgett. 

Vallejo 

Sonoma 

Santa  Rosa 

Healdsburg.... 

Hoag  &  Whipple. 
J.  W.  Rose. 

Sonoma 

Petaluma 

W.  B.  Haskell. 

Stanislaus 

Modesto 

Geo.  W.  Schell. 

Sutter 

Yuba  City 

Stabler  &  Bayne. 

Tehama 

Red  Bluflf 

W.  Henry  Jones. 

Tulare 

Visalia 

Horace  Hawes. 

Tuolumne 

1 

Sonora  

C.  L.  Street. 

Ventura 

1 

; San  Buenaven- 
tura   

Henry  Robinson. 

C.  S.  Frost. 

Yolo 

Woodland 

Marvsville 

Yuba 

E.  A.  Davis. 

Part  1. 


ATTORNEYS. 


15 


NEVADA. 


County. 

Baker 

Benton  ... 
Coos 


County. 

RlHIDBNCE. 

Namb. 

Douslas 

Genoa 

D.  W.  Virgin. 

Elko 

Elko 

Keeney  &  Bigelow. 
A.  L.  Greeley. 
Bishop  &  Sabin. 
W.  L.  French. 
Henry  Mayenbautn. 
J.  M.  Han  ford. 

Esmeralda 

Aurora 

Eureka 

Eureka 

Humboldt 

Lander 

Winnemucca... 
Austin 

Lincoln 

■ 

Pioche 

Lvon 

Dayton 

Carson  City... 
Virginia  City.. 
Reno 

Geo.  W.  Keith. 

Ormsbv 

Ellis  &  King. 

r    rev 

W.  E.  F.  Deal. 

Washoe 

C.  W.  Jones, 

Collector. 

OREGON. 


Kkhidbncr. 


Baker  City... 
Corvallis 


Marshfield 


Nahr. 


L.  0.  Sterns. 

Also  Notary  Public. 

F.  A.  Chenoweth. 


Seglin  &  Bennett. 


16 


ATTORNEYS. 

OREGON—  Cwitinued. 


[Part  1. 


COUNTT. 

Kksidbnce. 

Name. 

Douglas 

Roseburg 

E.  G.  Hursh. 

Jackson 

Jacksonville  ... 

H.  K.  Hanna. 

Lane 

Eugene  City... 

George  B.  Dorris. 

Linn 

Albany  

Salem 

Portland 

Powell  &  Flinn. 

Marion 

Knight  &  Lord. 

Dolph,  Bronaugh, 

Dolph  &  Simon. 

Multnomah  ... 

Polk 

Dallas 

Pendleton 

J.  L.  Collins. 

Umatilla .  

Turner  &  Bailey. 

Union 

La  Grande 

M.  Baker. 

Wasco 

The  Dalles 

J.  B.  Condon. 

Washington... 

Hillsboro 

Thos.  H.  Tongue. 

Yamhill.... 

Lafayette 

H.  Hurley.     > 

UTAH  TERRITORY. 


County. 


Rbbidknce. 


Salt  Lake.. 
Box  Elder. 


Namb. 


Salt  Lake  City 
Corinne 


Lewis  Burnes. 
E.  P.  Johnson. 


Part  1. 


ATTORNEYS. 


17 


WASHINGTON  TERRITORY. 


County. 

Rrsidk.nck. 

Namr. 

Clarke 

Vancouver 

Charles  Brown, 

Collector. 

Jeflerson 

P'rt  Townsend 

J.  A.  Kuhn. 

Kinff 

Seattle 

Leary  &  McNaught. 
Jacob  Hoover. 

■^^'^■•*o ■  ■  •  t  i 

Pierce  

Steilacoom 

Thuiston 

Olympia 

John  P.  Judson. 

Walla  Walla... 

Walla  Walla... 

Judge  James  K.  Kennedy. 

MONTANA  TERRITORY. 


County. 


Le wis  &  Clarke 
Madison 


Rkbidknck. 


Helena 


Virginia  City. 


W.  E.  CuUen. 


Theo.  Muffly. 


IDAHO  TERRITORY. 


County; 

Rkbidknck. 

Namb. 

Ada 

Boise  City 

Idaho  City 

Lewiston  

Huston  &  Gray. 
Jonas  W.  Brown. 

Boise 

Nez  Perces 

J.  M.  Howe. 

18 


ATTORNEYS. 


[Part  1. 


ARIZONA  TERRITORY. 


COUSTV. 

Rhsiukmob. 

Name. 

Pima 

Tucson 

Farley  &  Pomroy. 
Rush  &  Wells. 
H.  N.  Alexander. 

Yavapai 

Yuma 

Prescott 

Yuma 

WiOMING  TERRITORY. 

County. 

Hksidknck.                                          Name. 

Laramie 

Cheyenne  

Johnson  &  Potter. 

BRITISH  COLUMBIA. 

Namb. 


Victcria 


Drake  &  Jackson. 


*K^ 


PART  II. 


JURISDICTION  OF  UNITED  STATES  COURTS. 


CHAPTER  I. 

COURTS  AND  THEIR  JURISDICTION. 

The  Circuit  Courts  of  the  United  States  have  jurisdiction — 

Of  all  suits  of  a  civil  nature  at  common  law  or  in  equity,  where 
the  matter  in  dispute,  exclusive  of  costs,  exceeds  the  sum  or  value 
of  five  hundred  dollars,  and  an  alien  is  a  party,  or  the  suit  is  be- 
tween a  citizen  of  the  State  where  it  is  brought  and  a  citizen  of 
another  State:  Provided,  that  no  Circuit  Court  shall  have  cog- 
nizance of  any  suit  to  recover  the  contents  of  any  promissory  note 
or  other  chose  in  action  in  favor  of  an  assignee,  unless  a  suit 
might  have  been  prosecuted  in  such  Court  to  recover  the  said 
contents  if  no  assignment  had  been  made,  except  in  case  of 
foreign  bills  of  exchange. 

In  all  suits  at  law  or  in  equity  arising  under  the  patent  or  copy- 
right laws  of  the  United  States. 

Of  all  suits  by  or  against  any  banking  association  established 
in  the  district  for  which  the  court  is  held,  under  any  law  provid- 
ing for  national  banking  associations. 

Any  suit  commenced  in  a  State  Court,  when  the  amount  in  dis- 
pute, exclusive  of  costs,  exceeds  the  sum  or  value  of  five  hundred 


20 


JURISDICTION  U.  8.  COURTS. 


[Part  2. 


dollars,  to  be  made  to  appear  to  the  satisfaction  of  said  Court, 
may  be  removed,  for  trial,  into  the  Circuit  Court  for  the  district 
where  such  suit  is  pending,  next  to  be  held  after  the  filing  of  the 
petition  for  such  removal,  in  the  cases  following: 

1.  When  the  suit  is  against  an  alien,  or  is  by  a  citizen  of  the 
State  wherein  it  is  brought,  and  against  a  citizen  of  another 
State,  on  the  petition  of  the  defendant. 

2.  When  the  suit  is  against  an  alien  and  a  citizen  of  the  State 
where  it  is  brought,  or  is  by  a  citizen  of  such  State  against  a 
citizen  of  the  same  and  the  citizen  of  another  State,  it  may  be  so 
removed,  as  against  said  alien  or  citizen  of  another  State,  upon 
the  petition  of  such  defendant.  But  such  removal  shall  not  take 
away  or  prejudice  the  right  of  the  plaintiff  to  proceed  at  the  same 
time  with  the  suit  in  the  State  Court,  as  against  the  other  defend- 
ants. , 

3.  When  a  suit  is  between  a  citizen  of  the  State  in  which  it  is 
brought  and  a  citizen  of  another  State,  it  may  be  removed  on 
the  petition  of  the  latter,  whether  he  be  plantiff  or  defendant, 
if  he  makes  and  files  in  said  State  Court  an  affidavit,  stating  that 
he  has  reason  to  believe,  and  does  believe,  that,  from  prejudice 
or  local  influence,  he  will  not  be  able  to  obtain  justice  in  such 
State  Court. 

The  District  Courts  of  the  United   States  have  jurisdiction — 

In  all  suits  by  or  against  any  association  established  under 
any  law  providing  for  national  banking  associations,  within  the 
district  for  which  the  Court  is  held. 

It  also  has  jurisdiction  of  suits  for  the  collection  of  the  Inter- 
nal Revenue,  and  is  the  Court  of  Admiralty. 


i 


PART  III. 


STATE  OF  CALIFORNIA. 


CHAPTER  I. 


COURTS  AND  THEIR  JURISDICTJ-  f. 

The  Supreme  Court  of  the  State  of  California  has  original 
and  appellate  jurisdiction.     Its  original  jurisdiction  extends— 

To  the  issuance  of  writs  of  mandamus,  certiorari,  prohibition, 
and  habeas  corpus,  and  all  other  writs  necessary  or  proper  to 
the  complete  exercise  of  its  appellate  jurisdiction. 

Its  appellate  jurisdiction  extends — 

1.  To  all  civil  actions  for  relief  formerly  given  in  courts  of 
equity. 

2.  To  all  civil  actions  in  which  the  subject  of  litigation  is  not 
capable  of  pecuniary  estimation. 

3.  To  all  civil  actions  in  which  the  subject  of  litigation  is  capa- 
ble of  pecuniary  estimation,  which  involve  the  title  or  possession 
of  real  estate,  or  the  legality  of  any  tax,  impost,  assessment,  toll 
or  municipal  fine,  or  in  which  the  demand  exclusive  of  interest, 
or  the  value  of  the  property  in  controversy,  amounts  to  three 
hundred  dollars. 

4.  To  all  special  proceedings. 

5.  To  all  cases  arising  in  the  Probate  Courts. 


22 


CALIFORNIA. 


[Pai-t  3 


District  Courts. 

The  jurisdiction  of  these  Courts  extends — 

1.  To  all  civil  actions  for  relief  formerly  given  in  courts  of 
equity. 

2.  To  all  civil  actions  in  which  the  subject  of  litigation  is  not 
capable  of  pecuniary  estimation. 

3.  To  all  civil  actions  (except  actions  of  forcible  entry  and  de- 
tainer) in  which  the  subject  of  litigation  is  capable  of  pecuniary 
estimation,  which  involve  the  title  of  possession  of  real  estate, 
or  the  legality  of  any  tax,  impost,  assessment,  toll  or  municipal 
fine,  or  in  which  the  demand,  exclusive  of  interest,  or  the  value 
of  the  property  in  controversy,  amounts  to  three  hundred  dollars. 

4.  To  special  proceedings  not  within  the  jurisdiction  of  the 
County  and  Probate  Courts.  , 

5.  To  the  issuance  of  writs  of  mandamus,  certiorari,  prohibi- 
tion, habeas  corpus,  and  all  writs  necessary  to  the  exercise  of  its 
powers. 

County  Courts 


i 


Have  original  and  appellate  jurisdiction.     Their  original  juris- 
diction extends — 

1.  To  actions  to  prevent  or  abate  a  nuisance. 

2.  To  actions  of  forcible  entry  and  detainer. 

3.  T«  proceedings  in  insolvency. 

4.  To  all  special  cases  or  proceedings  in  which  the  law,  giving 
the  remedy  or  authorizing  the  proceedings,  confers  the  jurisdic- 
tion upon  it. 

5.  To  the  issuance  of  writs  of  habeas  corpus,  and  all  writs  nec- 
essary to  the  exercise  of  its  powers. 

6.  To  inquire,  by  the  intervention  of  a  grand  jury,  of  all  public 
offenses  committed,  or  triable  in  the  county, 

7.  Their  appellate  jurisdiction  extends  to  all  cases  arising  in 
Justices'  or  Police  Courts. 


Chap.  1. 


CALIFORNIA. 


Probate  Courts. 


98 


Probate  Courts  have  jurisdiction. 

1.  To  open  and  receive  proof  of  last  wills  and  testaments,  and 
to  admit  them  to  probate. 

2.  To  grant  letters  testamentary,  of  administration  and  of 
guardianship,  and  to  revoke  the  same. 

3.  To  appoint  appraisers  of  estates  of  deceased  persons. 

4.  To  compel  executors,  administrators  and  guardians  to  ren- 
der accounts. 

5.  To  order  the  sale  of  property  of  estates,  or  belonging  to 
minors. 

6.  To  ©rder  the  payment  of  debts  due  from  estates. 

7.  To  order  and  regulate  all  distributions  and  partitions  of 
property,  or  estates  of  deceased  persons. 

8.  To  compel  the  attendance  of  witnesses,  and  the  production 
of  title  deeds,  papers,  and  other  property  of  an  estate,  or  of  a 
minor. 

9.  To  make  such  orders  as  may  be  necessary  to  the  exercise  of 
the  powers  conferred  upon  it. 

10.  To  exercise  jurisdiction  in  all  matters  of  probate  and  guar- 
dianship. 

Justices'  Courts, 

The  civil  jurisdiction  of  these  Courts  within  their  respective 
townships  or  cities  extends — 

1.  To  an  action  arising  on  contract,  for  the  recovery  of  money 
only,  if  the  sum  claimed,  exclusive  of  interest,  does  not  amount 
to  three  hundred  dollars. 

2.  To  an  action  for  damages  for  injury  to  the  person,  or  for 
taking  or  detaining  personal  property,  or  for  injuring  personal 
property  or  for  an  injury  to  real  property,  where  no  issue  is 
raised  by  the  answer  involving  the  plaintiflf's  title  or  possession 
of  the  same,  if  the  damages  claimed  do  not  amount  to  three 
hundred  dollars. 

3.  To  all  actions  for  a  fine,  penalty,  or  forfeiture,  not  amount- 
ing to  three  hundred  dollars,  given  by  statute  or  the  ordinance 
of  an  incorporated  city  or  town. 

4.  To  an  action  upon  a  bond  or  undertaking  conditioned  for 


^iJjmjimkmSjSm 


24 


CALIFORNIA. 


•" 


[Part  3. 


the  payment  bf  money,  not  amounting  to  three  hundred  dollars, 
though  the  penalty  exceed  that  sum;  the  judgment  to  be  given 
for  the  sum  actually  due.  When  the  payments  are  to  be  made 
by  installments,  an  action  may  be  brought  for  each  installment 
as  it  falls  due. 

5.  To  an  action  to  recover  the  possession  of  personal  property, 
when  the  value  of  such  property  does  not  amount  to  three  hun- 
dred dollars. 

6.  To  take  and  enter  judgment  on  the  confession  of  a  defend- 
ant, when  the  amount  confessed,  exclusive  of  interest,  does  not 
amount  to  three  hundred  dollars. 

The  jurisdiction  above  does  not  extend,  however — 

1.  To  a  civil  action  in  which  the  title  or  possession  of  real  prop- 
erty IS  put  in  issue. 

2.  Nor  to  an  action  or  proceeding  against  ships,  vessels,  or 
boats,  when  the  suit  or  proceeding  is  for  the  recovery  of  seamen's 
wages  for  a  voyage  performed  in  whole  or  in  part  without  the 
waters  of  ihis  State. 


CHAPTER  II. 

TERMS  OF  COURTS,  WHEN  AND  WHERE  HELD. 

Supreme  Court. 

There  must  be  six  terms  in  each  year  for  the  hearing  of  causes, 
to  commence  on  the  second  Monday  of  January,  April,  May, 
July,  October  and  November.  The  January  and  July  terms  are 
held  at  the  city  of  San  Francisco.  The  April  and  October  terms 
are  held  at  the  city  of  Los  Angeles.  The  May  and  November 
terms  at  the  city  of  Sacramento.  Additional  terms  may  be  held 
by  order  of  the  Court. 


Chap.  2.] 


•^^V'-.  •• 


CALIFORNIA. 


District  Courts. 


25 


«r 


C>> 


There  is  a  District  Court  in  each  of  the  judicial  districts,  and 
Court  is  held  at  the  county  seat  of  each  county,  as  follows: 


COUNTY. 


Alameda 

Alpine 

Amador 

Butte 

Calaveras 

Colusa 

Contra  Oosta..., 

Del  Norte 

El  Dorado 

Fresno 

Humboldt 

Inyo 

Kern 

Klamath 

Lake. 

Lassen 

Los  Angeles 

Marin 

Mc'ipooa 

MenOocino 

Merced 

Modoc , . 

Mono 

Monterey 

Napa ,.. 

Nevada  

Placer 

Plmuas 

Sacramento 

San  Benito 

San  Bernardino 
San  Diego 


San  Francisco  .  - 

I 

San  Joaquin 

San  Luis  Obispo 

San  Mateo 

Santa  Barbara.. .. 

Santa  Clara 

Santa  Cru/ 

"hasta 

Sierra 

Siskiyou 


DISIBIOT. 


WHEN  HELD. 


ttd  Monday  April ;  2d  Monday  August,  December. 

1st  Monday  April,  October. 

2d  Tuesday  January,  May,  September. 

Ist  Monday  February,  May,  November. 

Ist  Tuesday  January,  May,  September. 

4tli  Monday  April ;  'id  Monday  August ;  1st  Monday  Deo. 

3d  Tuesday  April,  July,  November. 

2(1  Mondav  May,  August,  Novemoer. 

2d  Tuesday  Maron,  June,  October,  December. 

3d  Monday  February,  June,  October. 

2d  Monday  March,  June,  September,  December.  i 

Ist  Monday  May,  November, 

3d  Monday  May.  November.  .' 

2d  Monday  April,  July,  October. 

Ist  Monday  April ;  3d  Monday  June,  November. 

3d  Monday  May,  August,  November. 

1st  Monday  February,  May,  August,  November. 

3d  Monday  March,  July,  November, 

3d  Monday  April ;  3d  Monday  '^ugust ;  2d  Monday  Dec. 

2d  Monday  April,  August,  December. 

3d  Monday  March,  July,  November.  ,     ■ 

Ist  Monday  May,  August,  November. 


Third 

Sixteenth 

Eleventh 

Second 

Eleventh 

Tenth 

Fifteenth .... 

Eighth 

Eleventh 

Thirteenth... 

Eighth 

Sixteenth  .... 
Sixteenth  .... 

Eighth 

Seventh 

Twenty-First, 

Seventeenth. 

Twenty-Second 

Thirteenth. . 

Twenty- Second 

Thirteenth.   . 

Twenty-Kirst. 

Sixteenth I  bd  Monday  April,  October. 


Twentieth. 

Seventh 

Fourteenth. . . 
Fourteenth.. . 
Tw  snty-Flrst. 

Sixth 

Twentieth 

Eighteenth,. . 
Eighteenth... 


Solano 

Sonoma. .. . 
Stanislaus  . 

Sutter 

Tehama 

Trinity  . . . 

Tulare 

Tuolumne 
Ventura... 

Yolo 

Yuba 


Fifth 

First 

Twelfth. . . , 

First 

Twentieth 
Twentieth 

Ninth 

Tenth , 

Ninth 


8eve"'.,h 

Twenty-Second 

Fifth 

iTenth 

'Second 

Ninth 

Thirteenth 

Fifth 

First 

Sixth 


3d  Monday  March,  July,  November, 

Ist  Monday  February,  June,  October. 

2d  Monday  M'irch,  June,  September,  December.  >, 

Ist  Monday  February,  May.  August,  November. 

2d  Monday  March ;  1st  Monday  June,  September,  Deo. 

1st  Monday  February.  April,  June,  August,  Oct.,  Deo. 

1st  Monday  April,  August,  December. 

2d  ""  -nday  March,  June,  September,  December. 

2d  Monday  January,  April,  July,  October. 

3fl  D  C— 3d  Monday  April,  August,  December.  4th— 
Ist  Monday  February,  May,  August.  November. 
lath— Ist  Monday  Jan.,  April,  July,  Oct.  15th— 1st 
Monday  March,  June,  Sept.,  Dec.  19th— 2d  Monday 
April.  Aug..  Dec.  a3d— 3d  Monday  April,  Aug., Dec. 

1st  Monday  February.  May,  August  ;"3d  Monday  Oct. 

2d  Monday  May,  September,  January. 

2d  Monday  February ;  4th  Monday  May,  August,  Nov. 

3d  Monday  March,  July,  November. 

Ist  Monday  January,  May,  September, 

2d  Monday  February,  June,  October 

2d  Monday  March,  June,  November.  i 

Ist  Monday  April ;  2d  Monday  July ;  4th  Monday  Oct. 

3d  Monday  January,  May,  September.  AtLake  City— 2d 
Monday  July. 

3d  Monday  January,  May,  September. 

1st  Monday  February,  May,  September. 

2d  Monday  January,  April,  September. 

4th  Monday  Feb. ;  3d  Monday  June ;  2d  Monday  Nov. 

1st  Monday  January,  April,  July,  October. 

2d  Monday  \pril,  August,  December. 

3d  Monday  January,  May,  Septfinber. 

Iht  Alonday  Msrch,  July ; 3(1  Monday  November. 

let  Monday  March,  July,  November. 

;<d  Mcmday  January.  May,  September. 


Tenth ,  'u  Monday  January  ;  3d  Monday  May ;  Ist  Monday  Oct. 


JUae^m 


BCM 


26 


california. 
County  and  Pbobate  Couris. 


[Part  3. 


The  terms  of  these  Courts  are  held  at  the  county  seat  of  each 
county,  as  follows : 


OODNTT. 


Alameda 

Alpine 

Amador 

Butte 

Calaveras  . . . . 

OoluBa 

Contra  Coata. 

Del  Norte 

£1  Dorado .... 

Fresno 

Humboldt.... 

Inyo 

Kern 

Klamath 

Lake 

Lasaen 

Los  Angeles. . 

Marin 

Mariposa 

Mendocino . . . 

Merced 

Modoc 

Mono 

Monterey 

Napa 

Nevada 


WHEN  HELD. 


Placer 

Plumas 

Sacramento 

San  Benito 

San  Bernardino. 

San  Diego 

San  Francisco... 

San  Joaquin 

San  Luis  Obispo. 

Ban  Mateo  

Santa  Barbara . . . 

Santa  Clara 

Santa  Cruz 

Shasta 

Sierra 

Siskiyou 

Siskiyou 

Solano 

Sonoma 

Stanislaus 

Sutter 

Tehama 

Trinity 

Tulare 

Tuolumne 

Ventura 

Yolo 

Yuba , 


1st  Monday  January,  April,  July ;  3d  Monday  September. 

1st  Monday  February,  June,  October. 

3d  Monday  March ;  2d  Monday  August ;  Ist  Monday  December. 

lat  Monday  January,  March,  May,  July,  September,  November. 

Ist  Monday  April,  August.  December. 

1st  Monday  January,  April ;  uu  Monday  July,  October. 

let  Monday  March,  August,  November. 

Ist  Monday  April,  July,  October. 

2d  Monday  February,  May,  September.  November. 

Ibt  Monday  January,  March,  May,  July,  September,  November. 

let  Monday  January,  March,  May,  July,  September,  November. 

Ist  Monday  January,  March,  May,  July,  September,  November. 

1st  Monday  January,  March,  May,  July,  September,  November. 

1st  Monday  April,  July,  October. 

Ist  Monday  February,  May,  August,  November. 

Ist  Monday  February,  May,  August,  November. 

1st  Monday,  January,  March,  May,  July,  September,  November. 

1st  Monday  Maich,  Jime;  3d  Monday  September;  2d  Monday  Dec. 

1st  Monday  January,  March,  May,  July,  September,  N<..vember. 

1st  Monday  March,  June,  September,  December. 

Ifct  Monday  March,  August,  December. 

3d  Monday  February,  April,  June,  August,  November. 

1st  Monday,  January,  May,  September. 

1st  Monday  December ;  3d  Monday  February,  April.  Jime,  September. 

1st  Monday  March,  September,  December;  3d  Monday  June. 

1st  Monday  February,  May,  August,  November. 

SesBions  may  be  held  utTruckee  at  the  discretion  of  the  Judge. 

Ist  Monday  January,  March,  May,  July,  September,  November. 

Ist  Monday  March,  June,  September,  December. 

Ist  Monday  January,  April,  July,  October. 

2d  Monday  February,  May ;  3d  Monday  August ;  2d  Monday  Nov. 

Ist  Monday  January,  March,  May,  July,  Heptember,  November. 

1st  Monday  January,  March,  May,  July,  September,  November. 

Ist  Monday  January,  March,  May,  July,  September,  November. 

Int  Monday  March,  April,  July,  October, 

1st  Monday  March,  June ;  3d  Monday  August ;  1st  Monday  December. 

2d  Monday  March,  June,  September,  December. 

Ist  Monday  March,  June,  September,  December, 

3d  Monday  February,  May,  August,  November. 

Ist  Monday  January,  March,  May,  July,  September,  November. 

Ist  Monday  January,  May,  September. 

3d  Monday  April, June,  September;  2d  Monday  De;'ember. 

1st  Monday  January,  March,  May,  September,  November. 

At  Lake  City  2d  Monday  of  July. 

3d  Monday  April,  August,  December. 

1st  Monday  January.  April,  July,  October. 

2d  Monday  February,  May,  August,  November. 

1st  Monday  January,  April,  July,  October. 

1st  Monday  January,  March,  May,  July,  September,  November. 

1st  Monday  January,  March,  Miiy,  July,  September,  November. 

Ist  Monday  March,  June,  September,  December. 

Ist  Monday  January,  May,  September. 

1st  Monday  February,  July,  October. 

1st  Mo'iday  January,  April,  July,  October. 

Ist  Monday  January,  April,  July ;  2d  Monday  October, 


Chap.  3.] 


CALIFORNIA. 


27 


Justices'  Courts. 


These  Courts  may  be  held  at  any  place  selected  by  the  justice 
holding  the  same,  in  the  township  or  city  for  which  he  is  elected, 
and  they  are  always  open  for  the  transaction  of  business. 

The  CiRcurr  Court  of  the    United  States — District  of 

California. 

The  regular  terms  shall  be  held  at  San  Francisco  as  follows: 
On  the  first  Monday  in  February,  second  Monday  in  July, 

and  fourth  Monday  in  November  of  each  year. 

The  circuit  judge  may  appoint  special  sessions  of  the  Circuit 

Court,  to  be  held  at  the  place  where  the  regular  session  is  held. 

The  District  Court  of  the  United    States — District  of 

California. 

The  regular  terms  shall  be  held  at  San  Francisco  as  follows: 
On  the  first  Monday  in  April,  on  the  second  Monday  in  August, 
and  on  the  first  Monday  in  December. 

Whenever  the  judge  fails  to  hold  any  regular  term  thereof,  it 
shall  be  his  duty,  if  it  appears  that  the  business  of  the  Court  re- 
quires it,  to  hold  an  intermediate  term. 


CHAPTER  III. 


PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


Actions  for  the  following  causes  must  be  tried  in  the  county  in 

which  the  subject  of  the  action,  or  some  part  thereof,  is  situated; 

1.  For  the  recovery-  of  real  property,  or  of  an  estate  or  interest 


28 


CALIFORNIA. 


[Part  3. 


therein,  or  for  the  determination,  in  any  form,  of  such  right  or 
interest,  and  for  injuries  to  real  property'. 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  all  liens  and  mortgages  on  real 
property. 

Where  the  real  property  is  situated  partly  in  one  county  and 
partly  in  another,  the  plaintiff  may  select  either  of  the  counties, 
and  the  county  so  selected  is  the  proper  county  for  the  trial  of 
such  action. 

Actions  for  the  following  causes  must  be  tried  in  the  county 
where  the  cause  or  some  part  thereof  arose. 

1.  For  the  recoveiy  of  a  penalty  or  forfeiture  imposed  by  stat- 
ute, except  that  when  it  is  imposed  for  an  offense  committed  on 
a  lake,  river,  or  other  stream  of  water  situated  in  two  or  more 
counties,  the  action  may  be  brought  in  any  county  bordering  on 
such  lake,  river,  or  stream,  and  opposite  to  the  place  where  the 
offense  was  committed. 

2.  Against  a  public  officer  or  person  especially  appointed  to 
execute  his  duties,  for  an  act  done  by  him  in  virtae  of  his  office, 
or  against  a  person  who,  by  his  command,  or  in  his  aid,  does  any- 
thing touching  the  duties  of  such  officer. 

Actions  against  counties  may  be  commenced  and  tried  in  any 
county  in  the  judicial  district  in  which  suoh  county  is  situated, 
unless  such  actions  are  between  counties,  in  which  case  they 
may  be  commenced  and  tried  in  any  county  not  a  party  thereto. 

All  other  actions  must  be  tried  in  the  county  in  which  the  de- 
fendants, or  some  of  them,  reside  at  the  commencement  of  the 
action;  or  if  none  of  the  defendants  reside  in  the  State,  or  if  re- 
siding in  this  State,  the  county  in  which  they  reside  is  unknown 
to  the  plaintiff,  the  same  may  be  tried  in  any  county  which  the 
plaintiff  may  designate  in  his  complaint:  and  if  the  defendant  is 
about  to  depart  from  the  State,  such  action  may  be  tried  in  any 
county  where  either  of  the  parties  reside,  or  where  service  is  had. 

If  the  county  in  which  the  action  is  commenced  is  not  the  pro- 
per county  for  the  trial  thereof,  the  action  may,  notwithstanding, 
be  '  3d  therein,  unless  the  defendant,  at  the  time  he  appears 
anr^  answers  or  demurs,  files  an  affidavit  of  merits,  and  demands 
in  writing  that  the  trial  be  had  in  the  proper  county. 


Chap.  3.] 


CALIFORNIA.. 


29 


The  place  of  trial  may  be  changed  in  the  following  cases: 

1.  When  the  county  designated  in  the  complaint  is  not  the 
proper  county. 

2.  When  there  is  reason  to  believe  that  an  impartial  trial  can- 
not be  had  therein. 

3.  When  the  convenience  of  witnesses  and  the  ends  of  justice 
would  be  promoted  by  the  change. 

4.  When  from  any  cause  the  judge  is  disqualified  for  acting. 

Place  of  Trial  of  Actions  in  Justices'  Courts. 


1.  If  there  be  no  Justices'  Courts  for  the  township  or  city  in 
whioh  the  defendant  rep'des:  in  any  city  or  township  of  the 
county  in  which  he  resit  es. 

2.  When  two  or  more  persons  are  jointly,  or  jointly  and  sever- 
ally, bound  in  any  debt  or  contract,  or  otherwise  jointly  liable 
in  the  same  action,  and  reside  in  different  townships  or  different 
cities  of  the  same  county,  or  in  different  counties :  in  the  town- 
ship or  city  in  which  any  of  the  persons  liable  may  reside. 

3.  In  case  of  injury  to  the  person  or  property:  in  the  town- 
ship or  city  where  the  injury  was  committed,  or  where  the  de- 
fendant resides. 

4.  If  for  the  recovery  of  personal  property,  or  the  value 
thereof,  or  damages  for  taking  or  detaining  the  same :  in  the 
township  or  city  in  which  the  property  may  be  found,  or  in 
which  the  property  was  taken,  or  in  which  the  defendant  resides. 

5.  When  the  defendant  is  a  non-resident  of  the  county:  in  any 
township  or  city  wherein  he  may  be  found. 

6.  When  the  defendant  is  a  non-resident  of  the  State:  in  any 
township  or  city  in  the  State. 

7.  When  a  person  has  contracted  to  perform  an  obligation  at 
a  particular  place,  and  resides  in  another  county,  township  or 
city :  in  the  township  or  city  in  which  such  obligation  is  to  be 
performed,  or  in  which  he  resides;  and  the  township  or  city  in 
which  the  obligation  is  incurred  shall  be  deemed  to  be  the  town- 
ship or  city  in  which  it  is  to  be  performed,  unless  tliei'e  is  a 
special  contract  to  the  contrary. 

8.  When  the  parties  voluntarily  appear  and  plead  without 
summons:  in  any  township  or  city  in  the  State. 


30 


CALIFORNIA. 


[Part  3. 


9.  In  all  other  cases:  in  the  township  or  city  in  which  the  de- 
fex>dant  resides. 

The  place  of  trial  may  be  changed  in  the  following  cases : , 

1.  When  it  appears  to  the  satisfaction  of  the  justice  before 
whom  the  action  is  pending,  by  affidavit  of  either  party,  that  such 
justice  is  a  material  witness  for  either  party. 

2.  When  either  party  makes  and  files  an  affidavit  that  he  be- 
lieves that  he  cannot  have  a  fair  and  impartial  trial  before  such 
justice,  by  reason  of  the  interest,  prejudice,  or  bias  of  the  justice. 

3.  When  a  jury  has  been  demanded,  and  either  party  makes 
and  files  an  affidavit  that  he  cannot  have  a  fair  and  impartial 
trial  on  account  of  the  bias  or  prejudice  of  the  citizens  of  the 
township  or  city  against  him. 

4.  When  from  any  cause  the  justice  is  disqualified  from  acting. 
6.  When  the  justice  is  sick  or  unable  to  act. 

Probate  Court. 


In  what  county  wills  must  be  proved  and  letters  testamentary 
or  of  administration  granted : 

1.  In  the  county  of  which  the  deceased  was  a  resident  at  the 
time  of  his  death,  in  whatever  place  he  may  have  died. 

2.  In  the  county  in  which  the  deceased  may  have  died,  leaving 
estate  therein,  he  not  being  a  resident  of  the  State. 

t.  In  the  county  in  which  any  part  of  the  estate  may  be,  the 
deceased  having  died  out  of  the  State  and  not  resident  therein 
at  the  time  of  his  death. 

4.  In  the  county  in  which  any  part  of  the  estate  may  be,  the 
deceased  not  being  a  resident  of  the  State,  and  not  leaving 
estate  in  the  county  in  which  he  died. 

5.  In  all  other  cases,  in  the  county  where  application  for  let- 
ters is  first  made. 


Ghap.4.] 


CALIFORNU. 


31 


CHAPTER  lY. 


LIMITATION  OF  CIVIL  ACTIONS. 

The  periods  prescribed  for  the  commencement  of  civil  actions 
are  as  follows : 

Within  Five  Y^ars. 

1.  An  action  upon  a  judgment  or  decree  of  any  Court  of  the 
United  States  or  of  any  State  within  the  United  States. 

2.  An  action  for  mesne  profits  of  real  property. 

Within  Four   Years. 

An  action  upon  any  contract,  obligation,  or  liability  founded 
upon  an  instrument  in  writing  executed  in  this  State  (promissory 
notes  included). 

Within  Three  Years. 


1.  An  action  upon  a  liability  created  by  statute,  other  than  a 
penalty  or  forfeiture. 

2.  An  action  for  trespass  upon  real  property. 

3.  An  action  for  taking,  detaining,  or  injuring  any  goods  or 
chattels,  including  actions  for  the  specific  recovery  of  personal 
property. 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mistake.  In 
this  case  the  time  begins  to  run  from  the  discovery,  by  the  ag- 
grieved party,  of  the  facts  constituting  the  fraud  or  mistake. 

Within  Tivo  Years. 

1.  An  action  upon  a  contract,  obligation,  or  hability,  not 
founded  upon  an  instrument  of  writing,  made  within  or  out  of 
this  State  (accounts  included), 

2.  An  action  founded  upon  an  instrument  of  writing  executed 
out  of  this  State  (promissory  notes  included). 

3.  An  action  against  a  sheriff,  coroner,  or  constable,  upon  a 
iability  incurred  by  the  doing  of  an  act  in  his  official  capacity. 


32 


CALIFORNIA. 


Parts. 


and  in  virtue  of  his  office,  or  by  the  omission  of  an  official  duty, 
including  the  non-payment  of  money  collected  upon  an  execu- 
tion— except  for  an  escape. 

4.  An  action  to  recover  damages  for  the  death  of  one  caused 
by  the  wrongful  act  or  neglect  of  another. 

Within  One  Year. 

1.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  where 
the  action  is  given  to  an  individual,  or  to  an  individual  and  the 
State,  except  where  the  statute  imposing  it  prescribes  a  different 
limitation. 

2.  An  action  for  libel,  slander,  assault,  battery,  false  imprison- 
ment, or  seduction. 

3.  An  action  against  a  sheriff  ©r  other  officer  for  the  escape  of 
a  prisoner  arrested  or  imprisoned  on  civil  process. 

4.  An  action  against  a  municipal  corporation  for  damages  for 
injuries  to  property  caused  by  a  mob  or  riot. 

Within  Si.^  Months. 

An  action  against  an  officer,  or  officer  de  facto — 

1.  To  recover  any  goods,  wares,  merchandise,  or  other  prop- 
erty, seized  by  such  officer  in  his  official  capacity  as  tax  collector, 
or  to  recover  the  price  or  value  of  any  goods,  wares,  merchandise, 
or  otlier  personal  property  so  seized,  or  for  damages  for  the 
seizure,  detention,  sale  of,  or  injury  to  any  goods,  wares, 
merchandise,  or  other  personal  property  seized,  or  for  damages 
done  to  any  person  or  property  in  making  any  such  seizure. 

2.  To  recover  stock  stild  for  a  delinquent  assessment,  upon 
the  ground  of  irregularity  in  the  assessment,  or  irregularity  or 
defect  of  the  notice  of  sale,  or  defect  or  irregularity  in  the  sale. 

No  Limitation, 

To  actions  for  the  recovery  of  money  or  other  property  depos- 
ited with  any  bank,  banker,  trust  company,  or  savings  and  loan 
society. 

General  Provisions. 

The  period  of  limitation  begins  to  run  from  the  time  the  cause 
of  action  accrues,  or  in  other  words,  from  the  time  when  suit  can 
be  brought. 


Chap.  4.] 


OAUFORNIA. 


8t 


A  partial  payment  of  an  amount  due  under  an  agreement  in 
writing,  (promissory  notes  included)  or  under  an  agreement  not 
in  writing,  (book  accounts  included)  does  not  prevent  the  statute 
running;  but  where  a  balance  is  due  upon  a  mutual,  open,  and 
current  account,  where  there  have  been  reciprocal  demands  be- 
tween the  parties,  the  statute  begins  to  run  from  the  last  item 
pioved  in  the  account  on  either  side. 

If  when  the  cause  of  action  accrues  against  a  person,  he  is  out 
of  the  State,  the  action  may  be  commenced  within  the  time  above 
limited,  after  his  return  to  the  State,  and  if,  after  the  cause  of 
action  accrues,  he  departs  from  the  State,  the  time  of  his  absence 
is  not  part  of  the  time  limited  for  the  commencement  of  the 
action. 

If  a  person  entitled  to  bring  an  action  be,  at  the  time  the 
cause  of  action  accrues,  either  within  the  age  of  majority,  insane, 
imprisoned  on  a  criminal  charge,  or  in  execution  under  the  sen- 
tence of  a  Criminal  Court  for  a  term  less  than  for  life,  or  a 
married  woman,  and  her  husband  be  a  necessary  party  with  her 
in  commencing  such  action,  the  time  of  such  disability  is  not  a 
part  of  the  time  limited. 

If  a  person  entitled  to  bring  an  action  die  before  the  expira- 
tion of  the  time  limited  for  the  commencement  thereof,  and  the 
cause  of  action  survive,  an  action  may  be  commenced  by  his 
representatives,  after  the  expiration  of  that  time,  and  within  six 
months  from  his  death.  If  a  person,  against  whom  an  action 
may  be  brought,  die  before  the  expiration  of  the  time  limited  for 
the  commencement  thereof,  and  the  cause  of  action  survive,  an 
action  may  be  commenced  against  his  representatives  after  the 
expiration  of  that  time,  and  within  one  year  after  the  issuing  of 
letters  testamentary  or  of  administration. 

When  a  person  is  an  alien  subject,  or  citizen  of  a  country  at 
war  with  the  United  States,  the  time  of  the  continuance  of  the 
war  is  not  part  of  the  period  limited  for  the  commencement  of 
the  action. 

When  the  commencement  of  an  action  is  stayed  by  injunction 
or  statutory  prohibition,  the  time  of  the  continuance  of  the  in- 
junction or  prohibition  is  not  part  of  the  time  limited  for  the 
commencement  of  the  action. 

When  a  cause  of  action  has  arisen  in  another  State,  or  in  a 


34 


CALirORNIA. 


[Part  3. 


foreign  country,  and  by  the  laws  thereof  an  action  thereon  can 
not  there  be  maintained  against  a  person  by  reason  of  the  lapse 
of  time,  an  action  thereon  shall  not  be  maintained  against  him 
in  this  State,  except  in  favor  of  one  who  has  been  a  citizen  of 
this  State,  and  who  has  held  the  cause  of  action  from  the  time  it 
accrued. 

No  acknowledgment  or  promise  is  sufficient  eviden<^e  of  a  new 
or  continuing  contract,  by  which  to  take  the  case  out  of  the 
operation  of  the  statute,  unless  the  same  is  contained  in  some 
writing,  signed  by  the  party  to  be  charged  thereby. 


CHAPTER  Y. 


PARTIES  TO  SUITS— COMMENCEMENT  OF  ACTIONS. 


Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  in  the  case  of  an  executor,  or  administrator, 
or  trustee  of  an  express  trust  (including  a  person  with  whom,  or 
in  whose  name,  a  contract  is  made  for  the  benefit  of  another),  or 
a  person  expressly  authorized  by  statute,  who  may  sue  without 
joining  with  him  the  person  or  persons  for  whose  benefit  the 
action  is  brought.  • 

In  the  case  of  an  assignment  of  a  right  to  recover  money  or 
other  personal  property  by  a  judicial  proceeding,  the  action  by 
the  assignee  is  without  prejudice  to  any  set-off  or  other  defense 
existing  at  the  time  of,  or  before  notice  of,  the  assignment;  but 
this  does  not  apply  to  a  negotiable  promissory  note  or  bill  of  ex- 
change, transferred,  in  good  faith  and  upon  good  consideration, 
before  maturity. 

Persons  severally  liable  upon  the  same  obligation  or  instru- 
ment, including  the  parties  to  bills  of  exchange  and  promissory 
notes,  and  sureties  on  the  same  or  separate  instruments,  may  all 
or  any  of  them  be  included  in  the  same  action,  at  the  option  of 
the  plaintiff. 


Chap.  5.] 


CALIFORNIA. 


36 


Civil  actions  in  the  Courts  of  this  State  are  commenced  by  filing 
a  complaint.  En  the  Justices'  Courts,  by  tiling  a  complaint  and 
issuing  a  summons  thereon,  or  bj  the  voluntary  appearance  and 
pleading  of  the  parties. 

The  plaintiff  may  have  summons  issued  any  time  within  one 
year  after  the  complaint  is  filed  with  the  clerk  or  justice. 

In  the  District  Courts  the  defendant  is  allowed  ten  days  after 
the  service  of  summons  and  complaint  to  appear  and  answer  the 
complaint,  where  service  is  made  within  the  county  in  which  the 
action  is  brought;  twenty  days  if  served  out  of  the  county  but 
in  the  district  in  which  the  action  is  brought,  and  forty  days  if 
served  elsewhere. 

-  In  the  District  Courts,  the  summons  and  copy  of  complaint 
may  be  served  by  the  sheriff  of  the  county  where  defendant  may 
ba  found,  or  by  any  other  person  over  the  age  of  eighteen,  not 
a  party  to  the  action. 

On  whom  Savimons  to  be  served. 


1.  If  the  suit  is  against  a  corporation  formed  under  the  laws 
of  this  State :  the  president  or  other  head  of  the  corporation, 
secretary,  cashier,  or  managing  agent  thereof. 

2.  If  against  a  foreign  corporation,  or  a  non-resident  joint- 
stock  company  or  association,  doing  business  and  having  a 
managing  or  business  agent,  cashier,  or  secretary  within  this 
State:  the  agent,  cashier,  or  secretary. 

3.  If  against  a  minor  under  the  age  of  fourteen  years,  residing 
within  this  State :  such  minor  personally,  and  also  his  father, 
mother,  or  guardian;  or  if  there  be  none  within  this  State j  then 
any  person  having  the  care  or  control  of  such  minor,  or  with 
whom  he  resides,  or  in  wi  ose  service  he  is  employed. 

4.  If  against  a  person,  residing  Within  this  State,  who  has  been 
judicially  declared  to  be  of  unsound  mind,  or  incapable  of  con- 
ducting his  own  affairs,  and  for  whom  a  guardian  has  been  ap- 
pointed: such  person,  and  also  his  guardian. 

5  If  against  a  county,  city,  or  town :  the  president  of  the  board 
of  supervisors,  president  of  the  council,  or  trustees,  or  other 
head  of  the  legislative  department  thereof. 

6.  In  all  other  cases  the  defendant  must  be  served  personally. 


86 


CALIFORNIA. 


[Part  3. 


Service  by  Publication, 


When  the  person  on  whom  the  service  is  to  be  made  resides 
out  of  the  State,  or  has  departed  from  the  State,  or  cannot, 
after  due  diligence,  be  found  within  the  State,  or  conceals  him- 
self to  avoid  service,  or  is  a  foreign  corporation  having  no  man- 
aging or  business  agent,  cashier,  or  secretary  within  the  State, 
and  the  fact  appears  by  affidavit  to  the  satisfaction  of  the  Court, 
or  a  judge  thereof,  or  a  county  judge,  and  it  also  appears  by 
such  affidavit,  or  by  the  verified  complaint  on  file,  that  a  cause  of 
action  exists  against  the  defendant  in  respect  to  whom  the  ser- 
vice is  to  be  made,  or  that  he  is  a  necessary  or  proper  party  to 
the  action,  such  Court  or  judge  may  make  an  order  that  the  ser- 
vice be  made  by  the  publication  of  the  summons. 

The  order  must  direct  the  publication  to  be  made  in  a  news- 
paper, to  be  designated  as  most  likely  to  give  notice  to  the  per- 
son to  be  served,  and  for  such  lenth  of  time  as  may  be  deemed 
reasonable,  at  least  once  a  week;  but  publication  against  a  def- 
endant residing  out  of  the  State,  or  absent  therefrom,  must  not 
be  less  than  two  months.  In  case  of  publication,  where  the 
residence  of  a  non-resident  or  absent  defendant  is  known,  the 
Court  or  a  judge  must  direct  a  copy  of  the  summons  and  com- 
plaint to  be  forthwith  deposited  in  the  y-ostoffice,  directed  to  the 
person  to  be  served,  at  his  place  of  re^iuence.  When  publica- 
tion is  ordered,  pertional  service  of  a  copy  of  the  summons  and 
complaint  out  of  the  State  is  equivalent  to  publication  and  de- 
posit in  the  postoffice.  In  either  case,  the  service  of  the  sum- 
mons is  complete  at  the  expiration  of  the  time  prescribed  by  the 
order  for  publication. 

Provisions  in  Justices'  Courts. 

In  Justices'  Courts,  the  time  for  the  appearance  of  the  defend- 
ant must  be  set  forth  in  the  summons,  and  must  be  as  follows: — 

1.  Forthwith,  if  an  order  of  arrest  is  indorsed  upon  the  sum- 
mom. 

2.  In  all  other  cases  the  summons  must  contain  a  direction 
that  the  defendant  must  appear  and  answer  the  complaint  with- 
jn  five  days,  if  the  summons  be  served  in  the  township  in  which 


I 


Chap.  5. J 


CALIFORNU. 


87 


the  action  in  brought;  within  ten  days  if  served  out  of  the  Town- 
ship, but  in  the  county  in  which  the  action  is  brought  and  with- 
in twenty  days  if  served  elsewhere. 

Oil  whom  summons  to  be  served  in  Justice  Court  actions:   see 
rule  for  service  in  District  Courts . 

Service  by  Publication. 


Rule  in  District  Courts  applicable  to  Justices'  Courts. 

In  Justice  Court  actions  the  summons  cannot  be  served  out  of 
the  county  of  the  justice  before  whom  the  action  is  brought,  ex- 
cept when  the  action  is  brought  upon  a  joint  contract  or  obliga- 
tion of  two  or  more  persons  who  reside  in  ditFerent  counties,  and 
the  summons  has  been  served  upon  the  defendant  resident  of 
the  county,  in  which  case  the  summons  may  be  served  upon  the 
other  defendants  out  of  the  county;  and  except  also  when  an  ac- 
tion is  brought  against  a  party  who  has  contracted  to  perform  an 
obligation  at  a  particular  place,  and  resides  in  a  different  coun- 
ty, in  which  case  summons  may  be  served  in  the  county  where 
he  resides;  and  ex«ept  also,  where  an  action  is  brought  for  in- 
jury to  person  or  property  and  the  defendant  resides  in  a  differ- 
ent county,  in  which  case  summons  may  be  served  in  the  county 
where  the  defendant  resides, 

The  justice  may,  within  a  year  from  the  date  of  filing  the  com- 
plaint, issue  as  many  alias  summons  as  may  be  demanded  by  the 
plaintiff. 

The  summons  in  a  Justice  Court  action  may  be  served  by  a 
sheriff  or  constable  of  any  of  the  counties  of  this  State,  or  by 
any  male  resident  over  the  age  of  twenty-one  years,  not  a  party 
to  the  suit,  and  within  the  county  where  the  action  is  brought, 
or  it  may  be  served  by  publication.  When  a  summons  is  issued 
by  a  justice  of  the  peace  for  service  out  of  the  county  in  which 
it  was  issued,  the  summons  shall  have  attached  to  it  a  certificate, 
under  seal  by  the  county  clerk  of  such  county,  to  the  effect  that 
the  person  issuing  the  same  was  an  acting  justice  of  the  peace 
at  the  date  of  the  summons. 


38 


CALIFOBNIA. 


[Part  3. 


CHAPTER  VI. 

FORM  OF  CIVIL  ACTIONS— PLBADINGS; 

There  is  in  this  State  but  one  form  of  civil  actions  for  the  en- 
forcement or  protection  of  private  rights  and  the  redress  or 
prevention  of  private  wrongs. 

In  such  action  the  party  complaining  is  known  as  the  plaintiff, 
and  the  adverse  party  as  the  defendant. 

Pleadings. 

Pleadings  are  the  formal  allegations  by  the  parties  of  their 
respective  claims  and  defenses,  for  the  judgment  of  the  Court. 

The  only  pleadings  allowed  on  the  part  of  the  plaintiff  are — 

1.  The  complaint. 

2.  The  demurrer  to  the  answer. 

8.  Demurrer  and  answer  to  a  cross-complaint. 

Those  allowed  on  the  part  of  the  defendant  are — 

1.  The  demurrer  to  the  complaint. 

2.  The  answer. 

3.  Cross-complaint. 

A  demurrer  raises  an  issue  of  law. 

An  answer  raises  an  issue  of  fact. 

An  issue  of  law  is  tried  by  the  Court. 

An  issue  of  iact  is  tried  by  a  jury,  unless  a  jury  trial  is  waived. 

The  complaint  must  contain  a  concise  statement,  in  writing, 
of  the  facts  constituting  the  cause  of  action. 

In  the  Justice  Court  a  copy  of  the  account,  note,  bill,  bond, 
or  instrument  upon  which  the  action  is  based,  is  sufficient. 

The  plaintih  may  unite  several  causes  of  action  in  the  same 
complaint  where  they  all  arise  out  of — 

1.  Contracts,  express  or  implied. 

2.  Claims  to  recover  specific  real  property,  with  or  without 
damages  for  the  withholding  thereof,  or  for  waste  committed 
thereon,  and  the  rents  and  profits  of  the  same. 


Chap.  6.] 


CALIFORNIA. 


89 


3.  Claims  Lo  recover  specific  personal  property,  with  or  with- 
out damages  for  the  withholding  thereof. 

4.  Claims  against  a  trustee  by  virtue  of  a  contract  or  by  opera- 
tion of  law. 

5.  Injuries  to  character. 

6.  Injuries  to  person. 

7.  Injuries  to  property. 

The  causes  of  action  so  united  must  all  beiong  to  one  only  of 
these  classes,  and  must  affect  all  the  parties  to  the  action,  and  not 
require  different  places  of  trial,  and  must  be  separately  stated. 

The  defendant  may  demur  to  the  complaint  within  the  time 
required  in  the  summons  to  answer,  when  it  appears  upon  the 
face  thereof,  either — 

1.  That  the  Court  has  no  jurisdiction  of  the  person  of  the  de- 
fendant, or  the  subject  of  the  action;  or, 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue;  or, 

3.  That  there  is  another  actio"  pending  between  the  same  par- 
ties for  the  same  cause;  or, 

4.  That  there  is  a  defect  or  misjoinder  of  parties  plaintiff  or 
defendant;  or, 

5.  That  several  causes  of  action  have  been  improperly  united; 
or, 

(?.  That  the  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action;  or, 

7.  That  t!i9  complaint  is  ambiguous,  unintelligible,  or  uncer- 
tain. 

Unless  the  demurrer  distinctly  sjiecify  the  grounds  upon  which 
any  of  the  objections  to  the  complaint  are  taken,  it  may  be  dis- 
regarded. 

The  defendant  may  demur  and  answer  at  the  same  time. 

The  answer  of  the  defendant  shall  contain — 

1.  A  general  or  specific  denial  of  the  material  allegations  of  the 
coujplaint  controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counter  claim.  If  the  complaint  be  verified,  the  denial  of  each 
allegation  controverted  must  be  specific,  and  be  made  positively, 
or  according  to  the  information  and  belief  of  the  defendant.  If 
the  defendant  has  no  information  or  belief  upon  the  subject  suf- 
ficient to  enable  him  to  answer  an  allegation  of  the  complaint. 


' 


i 


40 


CALIFORNIA. 


[Part  3. 


he  may  bo  state  in  his  answer,  and  place  his  denial  on  that 
ground.  If  the  complaint  be  not  verified,  a  general  denial  is 
sufl&cient,  but  only  puts  in  issue  the  material  allegations  of  the 
complaint. 

The  counter-claim  above  mentioned  must  be  one  existing  in 
favor  of  a  defendant,  and  against  a  plaintiff,  between  whom  a 
several  judgment  might  be  had  in  the  action,  and  arising  out  of 
one  of  the  following  causes  of  action : 

1.  A  cause  of  action  arising  out  of  the  transaction  set  forth  in 
the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or  con- 
nected with  the  subject  of  the  action. 

2.  In  an  action  arising  upon  contract;  any  other  cause  of 
action  arising  upon  contract,  and  existing  at  the  commencement 
of  the  action. 

If  the  defendant  omit  to  set  up  a  counter-claim  arising  out  of 
the  transaction  set  forth  in  the  complaint  as  the  foundation  of 
the  plaintiff's  claim,  or  connected  with  the  subject  of  the  action, 
neither  he  nor  his  assignee  can  afterwards  maintain  an  action 
against  the  plaintiff  therefor. 

When  cross-demands  have  existed  between  persons  under  such 
circumstances  that,  if  one  had  brought  an  action  against  the 
other,  a  counter-claim  could  have  been  set  up,  the  two  demands 
shall  be  deemed  compensated,  so  far  as  they  equal  each  other, 
and  neither  can  be  deprived  of  the  benefit  thereof  by  the  assign- 
ment or  death  of  the  other. 

The  plaintiff  may,  within  the  same  length  of  time  after  the 
service  of  the  answer  as  the  defendant  is  allowed  to  answer  after 
service  of  summons,  demur  to  the  answer  of  the  defendant,  or 
to  one  or  more  of  the  several  defenses  or  counter-claims  set  up 
n  the  answer. 

The  demurrer  may  be  taken  upon  one  or  more  of  the  follow- 
ing grounds : 

1.  That  several  causes  of  counter-claim  have  been  imp.  jperly 
joined. 

2.  That  the  answer  does  not  state  facts  sufficient  to  constitute 
a  defense  or  counter  claim. 

8,  That  the  answer  is  ambiguous,  unintelligible,  or  uncertain 


Chap.  6.] 


CALIFORNIA. 


41 


Verification  op  Pleadings. 

Every  pleading-  must  be  subscribed  by  the  party  or  his  attor- 
ney; and  when  the  complaint  is  verified,  the  answer  must  be 
verified,  unless  an  admission  of  the  truth  of  the  complaint  might 
subject  the  party  to  a  criminal  prosecution,  or  unless  an  officer 
of  the  State  in  his  official  capacity  is  defendant.  In  all  cases  of 
the  verification  of  a  pleading,  the  affidavit  of  the  party  mvist 
state  that  the  same  is  true  of  his  own  knowledge,  except  as  to 
the  matters  which  are  therein  stated  on  his  information  or  belief, 
and  as  to  those  matters  that  he  believes  it  to  be  true;  and  where 
a  pleading  is  verified  it  must  be  by  the  affidavit  of  a  party,  un- 
less the  parties  are  absent  from  the  county  where  the  attorney 
resides,  or  from  some  cause  unable  to  ver'fy  it,  or  the  facts  are 
within  the  knowledge  of  his  attorney  or  other  person  verifying 
the  same.  When  the  pleading  is  verified  by  the  attorney,  or  any 
other  person  except  one  of  the  parties,  he  must  set  forth  in  the 
affidavit  the  reasons  why  it  is  not  made  by  one  of  the  parties. 
When  a  corporation  is  a  party  the  verification  can  be  made  by 
an  officer  thereof. 

Provisions  in  Justices'  Courts. 


Pleadings  in  Justices'  Courts  are  not  required  to  be  in  any 
particular  form,  but  must  be  such  as  to  enable  a  person  of  com- 
mon understanding  to  know  what  is  intended. 

May — except  the  complaint — be  oral  or  in  writing. 

Not  to  be  verified. 

If  in  writing,  must  be  filed  with  the  justice. 

If  oral,  an  entry  of  their  substance  must  be  made  in  the  docket. 

The  defendant  may,  at  any  time  before  answering,  demur  to 
the  complaint. 

The  answer  may  contain  a  denial  of  any  or  all  of  the  material 

facts  stated  in  the  complaint,  which  the  defendant  believes  to 

be  untrue,  and  also  a  statement,  in  a  plain  and  direct  manner, 

of  any  other  facts  constituting  a  defense  or  counter  claim,  upon 

which  an  action  might  be  brought  by  the  defendant  agaiust  the 

plaintiff  in  a  Justice's  Court. 


42 


CALIFORNIA, 


[Part  3. 


If  the  defendant  omit  to  set  up  a  counter  claim  in  the  cases 
just  mentioned,  neither  he  nor  his  assignee  can  afterwards  main- 
tain an  action  against  the  plaintiff  therefor. 

When  the  answer  contains  new  matter  in  avoidance,  or  con- 
stituting a  defense  or  a  counter  claim,  the  plaintiff  may,  at  any 
time  before  the  trial,  c  \irr  to  the  same  for  insufl&ciency,  stat- 
ing therein  the  grounds  o  '  demurrer. 

The  proceedings  on  demt;     ^r  are  as  follows; 

1.  If  the  demurrer  to  the  complaint  is  sustained,  the  plaintiff 
may  within  such  time,  not  exceeding  two  days,  as  the  Court  al- 
lows, amend  his  complaint. 

2.  If  the  demurrer  to  the  complaint  is  ovenniled,  the  defendant 
may  answer  forthwith. 

3.  If  the  demurrer  to  an  answer  is  sustained,  the  defendant 
mayjamend  his  answer'within  such  time,  not  exceeding  two  days, 
as  the  Court  may  allow. 

4.  If  the  demurrer  to  an  answer  is  overruled,  the  action  must 
proceed  as  if  no  demurrer  had  been  interposed. 

Either  party  may,  at  any  time  before  the  conclusion  of  the 
trial,  amend  any  pleading;  but  if  the  amendment  is  made  after 
the  issue,  and  it  appears  to  the  satisfaction  of  the  Court,  by  oath, 
that  an  adjournment  is  necessary  to  the  adverse  party  in  conse- 
quence of  such  amendment,  an  adjournment  must  be  granted. 
The  Court  may  also,  in  its  discretion,  when  an  aijourument  be 
rendered  necessary,  require  as  a  condition  to  the  allowance  of 
such  amendment,  made  after  issue  joineil,  the  payment  of  costs 
to  the  adverse  ])arty,  to  be  fixed  by  the  Court,  noc  exceeding 
twenty  dollars,  ^he  Court  may  also,  on  such  terms  as  may  be 
just,  and  on  puyn.ent  of  costs,  relieve  a  party  from  a  judgment 
by  default  taken  against  him  hj  his  mistake,  inadvertence,  sur- 
prise, or  excusable  neglect;  but  the  application  for  such  relief 
must  be  made  within  ten  days  after  the  entry  of  the  judgment, 
and  upon  an  afl&davit  showing  good  cause  therefor. 

When  a  pleading  is  amended,  the  adverse  party  may  answer 
or  demur  to  it  within  such  time,  not  ex«!eeding  two  days,  as  the 
Court  may  allow. 


Chap.  7.] 


CALIFORNIA. 


43 


CHAPTER  VII. 


ATTACHMENTS. 


ts 


S 


he 


The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any 
time  afterwards,  may  have  the  property  of  the  defendant  attached 
as  security  for  the  satisfaction  of  any  judgment  that  may  be  re- 
covered, unless  the  defendant  gives  security  to  pay  such  judg- 
ment, in  the  following  cases : 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the 
direct  payment  of  meney,  where  the  contract  is  made  or  is  paya- 
ble in  this  State  and  is  not  secured  by  any  mortgage  or  lien  up- 
on real  or  personal  property,  or  any  pledge  of  personal  prt  »perty ; 
or  if  orignally  so  secured,  such  security  has,  without  any  act  of 
the  plaintiflf",  or  the  person  to  whom  the  security  was  given,  be- 
come valueless. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against  a 
defendant  not  residing  in  this  State. 

In  Justices'  Courts,  the  writ  to  attach  the  property  of  the  de- 
fendant must  be  issued  at  the  time  of  or  after  issuing  summons, 
and  before  answer. 

Before  issuing  the  writ  of  attachment,  the  clerk  of  the  Court 
or  justice  must  require  an  affidavit  by  or  on  behalf  of  the  plaintiff, 
showing : 

1.  That  the  deff  ndant  is  indebted  to  the  plaintiff  (specifying 
the  amount  of  such  indebtedness,  over  and  above  all  legal  set- 
offs or  counter-claims)  upon  a  contract,  express  or  implied,  for 
the  direct  payment  of  money,  and  that  such  contract  was  made 
oris  ])ayable  in  this  State,  and  that  the  payment  of  the  same  has 
not  been  secured  by  any  mortgage  or  lien  upon  real  or  personal 
property,  or  any  pledge  of  personal  property;  or  if  orignally  so 
secured,  that  such  security  has,  without  any  act  of  the  plaintiff, 
or  the  person  to  whom  the  security  was  given,  become  value- 
less; or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying 
the  amount  of  such  indebtedness  over  and  above  all  legal  set- 
offs, or  counter-claims)  and  that  the  defendant  is  a  non-resident 
of  the  State;  and, 


44 


CALIFORNIA. 


[Part  3. 


3.  That  the  attachment  is  not  sought  and  the  action  is  not 
prosecuted  to  hinder,  delay,  or  defraud  any  creditor  of  the  de- 
fendant. 

The  clerk  or  justice  must  also  require,  before  issuing  the  writ, 
a  written  undertakinjf  on  the  part  of  the  plaintiff,  (in  the  District 
Court,  in  a  sum  not  less  that  two  hundred  dollars,  and  not  ex- 
ceeding the  amount  claimed  by  the  plaintiff;  and  in  the  Justice's 
Court,  in  a  sum  not  less  than  fifty  dollars,  and  not  more  than 
three  hundred  dollars)  by  two,  or  more  sufficient  sureties,  to  the 
effect  that  if  the  defendant  recover  judgment,  the  plaintiff  will 
pay  all  costs  that  may  be  awarded  to  the  defendant,  and  all  dam- 
ages which  he  may  sustain  by  reason  of  the  attachment,  not  ex- 
ceeding the  sum  specified  in  the  undertaking. 

The  defendant  may  except  to  the  sufficiency  of  the  sureties. 

The  writ  of  attachment  in  District  Court  actions  must  be  di- 
rected to  the  sheriff  of  any  county  in  which  property  of  such  de- 
fendant may  be;  injustice  Court  actions,  to  the  sheriff  of  any 
county  in  which  property  of  the  defendant  may  be,  or  to  the 
sheriff  or  constable  in  the  county  where  the  suit  is  brought,  and 
must  require  him  to  attach  and  safely  keep  all  the  property  of 
the  defendant  within  his  county,  not  exempt  from  execution^ 
or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's 
demand,  the  amount  of  which  must  be  stated  in  conformity  with 
the  complaint,  unless  the  defendant  gives  him  security  by  the 
undertaking  of  at  least  two  sufficent  sureties,  in  an  amount 
sufficient  to  satisfy  such  demand  besides  costs,  or  in  an  «mount 
equal  to  the  value  of  the  property  which  has  been,  or  is  about  to 
be,  attached.  Several  writs  may  be  issued  at  the  same  time,  to 
the  sheriffs  of  different  counties. 

The  writ  of  attachment  must  be  executed,  without  delay,  by 
the  sheriff  to  whom  it  is  directed : 

1.  Real  property,  standing  upon  the  records  of  the  county  in 
the  name  of  the  defendant,  must  be  attached  by  filing  with  the 
recorder  of  the  county  a  copy  of  the  writ,  together  with  a  de- 
scription of  the  property  attached,  and  a  notice  that  it  is  attach- 
ed, and  by  leaving  a  similar  copy  of  the  writ,  description  and 
notice  with  an  occupant  of  the  property,  if  there  is  one;  if  not, 
then  by  posting  the  same  in  a  conspicuous  place  on  the  proper- 
ty attached. 


Chap.  7.] 


C^IilFORNU. 


45 


to 
to 

by 


2.  Real  property,  or  an  interest  therein,  belonging  to  the  de- 
fendant, and  held  by  any  other  person,  or  standing  on  the 
records  of  the  county  in  the  name  of  any  other  person,  must  be 
attached  by  filing  with  the  recorder  of  the  county  a  copy  of  the 
writ,  together  with  a  description  of  the  property,  and  a  notice 
that  such  real  property  and  any  interest  of  the  defendant 
therein,  held  by  or  standing  in  the  name  of  such  other  person, 
(naming  him)  are  attached;  and  by  leaving  with  the  occupant,  if 
any,  and  with  such  other  person  or  his  agent,  if  known  and  with- 
in the  county,  or  at  the  residence  of  either,  if  within  the  county, 
a  copy  of  the  writ,  with  a  sumilar  description  and  notice.  If 
their  is  no  occupant  of  the  property,  a  copy  of  the  writ,  together 
with  such  description  and  notice,  must  be  posted  in  a  conspicu- 
ous place  upon  the  property.  The  recorder  must  index  such  at- 
tachment when  filed,  in  the  names  both  of  the  defendant  and  of 
the  person  by  whom  the  property  is  held,  or  in  whose  name  it 
stands  on  the  records. 

3.  Personal  property,  capable  of  manual  delivery,  must  be  at- 
tached by  taking  it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares  of  any  cor- 
poration or  company,  must  be  attached  by  leaving  with  the  presi- 
dent or  other  head  of  the  same,  or  the  secretary,  cashier,  or 
other  managing  agent  thereof,  a  copy  of  the  writ,  and  a  notice 
stating  that  the  stock  or  interest  of  the  defendant  is  attached,  in 
pursuance  of  such  writ. 

5.  Debts  and  credits,  and  other  personal  property  not  capable 
of  manual  delivery,  must  be  attached  by  leaving  with  the  person 
owning  such  debts,  or  having  in  his  possession,  or  under  his  con- 
trol, such  credits  and  other  pergonal  property,  or  with  his  agent, 
a  copy  of  the  writ,  and  a  notice  that  the  debts  owing  by  him  to 
the  defendant  or  the  credits  and  othei  personal  property  in  his 
possession  or  under  his  control,  belonging  to  the  defendant,  are 
attached  in  pursuance  of  such  writ. 

Upon  receving  information,  in  writing,  from  the  plaintift'  or 
his  attorney,  that  any  person  has  in  his  possession,  or  under 
his  control,  any  credits  or  other  personal  property  belonging  to 
the  defendant,  or  is  owing  any  debt  to  the  defendant,  the  sherifi* 
must  serve  upon  such  person  a  copy  of  the  writ,  and  a  notice 


46 


CALIFORNIA. 


[Part  3. 


that  such  credits  or  otljer  property  or  debts,  as  the  case  may  be, 
are  attached  in  pursuance  of  such  writ. 

All  persons  having  in  their  possession,  or  under  their  control, 
any  credits  or  other  personal  property  belonging  to  the  defend- 
ant, or  owing  any  debts  to  the  defendant  at  the  time  of  service 
upon  them  of  a  copy  of  the  writ  and  notice,  as  above  directed, 
shall  be,  unless  such  property  be  delivered  up  or  transferred, 
or  such  debts  be  paid  to  the  sheriff,  liable  to  the  plaintiff  for  the 
amount  of  such  credits,  property,  or  debts,  until  the  attachment 
be  discharged,  or  any  judgment  recovered  by  him  be  satisfied. 

Any  person  owing  debts  to  the  defendant,  or  having  in  his 
possession,  or  under  his  control,  any  credits  or  other  personal 
property  belonging  to  the  defendant,  may  be  required  to  attend 
before  the  Court  or  judge,  or  a  referee  appointed  by  the  Court 
or  judge,  and  be  examined  on  oath  respecting  the  same.  The 
defendant  may  also  be  required  to  attend  for  the  purpose  of 
giving  information  respecting  his  property,  and  maybe  examined 

on  oath.  The  Court  or  judge  may,  after  such  examination, 
order  personal  property,  capable  of  manual  delivery,  to  be  deliv- 
ered to  the  sheriff  on  such  terms  as  may  be  just,  having  reference 
to  any  liens  thereon,  or  any  claims  against  the  same,  and  a 
memorandum  to  be  given  of  all  other  personal  property,  con- 
taining the  amount  and  description  thereof. 

Perishable  property  attached  must  be  sold  by  the  sheriff;  the 
proceeds,  and  other  property  attached,  must  be  retained  by  him 
to  answer  any  judgment  that  may  be  recovered  in  the  action, 
unless  sooner  subjected  to  execution  upon  another  judgment  re- 
covered previous  to  the  issuing  of  the  attachment.  Debts  and 
credits  attached  nmy  be  collected  by  him,  if  the  same  can  be 
done  without  suit.  The  sheriff's  receipt  is  a  sufficient  discharge 
for  the  amount  paid. 

Whenever  property  has  been  taken  by  an  officer  under  a  writ 
of  attachment,  and  it  is  made  to  appear  satisfactorily  to  the 
Court,  or  a  judge  thereof,  or  a  county  judge,  that  the  interest  of 
the  parties  to  the  action  will  be  subserved  by  a  sale  thereof, 
the  Court  or  a  judge  may  order  such  property  to  be  sold  in  the 
same  manner  as  property  is  sold  under  an  execution  ;nd  the 
proceeds  to  be  deposited  in  the  Court,  to  abide  the  judgment  in 
the  action. 


Chap.  7.] 


CALIFORNIA. 


47 


the 

lim 
tion, 
t  re- 

and 
be 
large 

writ 
o  the 
st  of 
reof, 
n  the 
dthe 
nt  in 


If  any  personal  property  attached  be  claimed  by  a  third  per- 
son as  his  property,  the  sheriff  may  .suimnjii  a  jury  of  six  men 
to  try  the  validity  of  such  claim. 

Whenever  the  defendant  has  appeared  in  the  action,  he  may, 
upon  reasonable  notice  to  the  plaintiff,  apply  to  the  Court  in 
which  the  action  is  pendinu^,  or  to  the  judge  thereof,  or  to  a 
county  judge,  for  an  order  to  discharge  the  attachment,  wholly 
or  in  part;  and,  upon  the  execution  of  the  undertaking  men- 
tioned hereafter,  an  order  may  be  made,  releasing  from  the 
operation  of  the  attachment  any  or  all  of  the  property  attached; 
and  all  the  property  so  released,  and  all  of  the  proceeds  of  the 
sales  thereof ,  must  be  delivered  to  the  defendant,  upon  the  justi- 
fication of  the  sureties  on  the  undertaking,  if  required  by  tae 
plaintiff. 

Before  making  such  order,  the  Court  or  judge  must  require 

an  undertaking  on  behalf  of  the  defendant,  by  at  least  two 
sureties,  I'esidents  and  freeholders,  or  householders,  in  the 
State,  to  the  effect  that,  in  case  the  plaintiff  recover  judgment  in 
the  action,  the  defendant  will,  on  demand,  re-deliver  the  attached 
property  so  released  to  the  proper  officer,  to  be  applied  to  the 
payment  of  the  judgment;  or,  in  default  thereof,  that  the  de- 
fendant and  sureties  will,  on  demand,  pay  to  the  plaintiff  the 
full  value  of  the  property  released.  The  Court  or  judge  mak- 
ing such  order  may  fix  the  sum  for  which  the  undertaking  miist 
be  executed,  and  if  necessary,  in  fixing  such  sum,  to  know  the 
value  of  the  property  released,  the  same  may  be  ai)praised  by 
one  or  more  disinterested  persons,  to  be  appointed  for  that  pur- 
pose. The  sureties  may  be  required  to  justify  before  the  Court 
or  judge,  and  the  property  cannot  be  released  without  their 
justification,  if  the  same  be  required. 

The  defendant  may  also,  at  any  time,  either  before  or  after  the 
release  of  the  attached  property,  or  before  any  attachment  shall 
have  been  actually  levied,  apply  on  motion,  upon  reasonable 
notice  to  the  plaintiff,  to  the  Court  in  which  the  action  is  brought, 
or  to  the  judge  thereof,  or  to  a  county  judge,  that  the  writ  of  at- 
tachment be  discharged,  on  the  ground  that  the  same  was  im- 
properly or  irregularly  issued. 

If,  upon  such  application,  it  satisfactorily  appears  that  the  writ 

of  attachment  was  improperly  or  irregularly  issued,  it  must  be  dis- 
charged. 


48 


CALIFORNIA. 


[Part  3. 


CHAPTPJR  VIII. 


CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 


The  plaintiff  in  an  action  to  recover  the  possession  of  personal 
property  may,  at  the  time  of  issuing  the  summons,  or  at  iny 
time  before  answer,  claim  the  delivery  of  such  property  to  him. 

Where  a  delivery  is  claimed,  an  affidavit  must  be  made  by  the 
plaintiff,  or  by  some  one  on  his  behalf,  showing — 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed  (par- 
ticulai'ly  describing  it),  or  is  entitled  to  the  possession  thereof. 

2.  That  the  property  is  wrongfully  detained  by  the  defendant. 

3.  The  alleged  cause  of  the  detention  thereof,  according  to 
his  best  knowledge,  information,  and  belief. 

4.  That  it  has  not  been  taken  for  a  tax,  assessment  or  fine, 
pursuant  to  a  statute;  or  seized  under  an  execution  or  an  attach- 
ment against  the  property  of  the  plaintiff;  or  if  so  seized,  that  it 
is  by  statute  exempt  from  seizure, 

6.  The  actual  value  of  the  property. 

The  plaintiff  or  his  attorney  may,  thereupon,  by  an  endorse- 
ment in  writing  upon  the  affidavit,  require  the  sheriff  of  the 
county  where  the  property  claimed  may  be,  to  take  the  same 
from  the  defendant. 

Upon  a  receipt  of  the  affidavit  and  notice  with  a  written  un- 
dertaking, executed  by  two  or  more  sufficient  sureties,  approved 
by  the  sheriff,  to  the  effect  that  they  are  bound  to  the  defendant 
in  double  the  value  of  the  property  as  stated  in  the  affidavit  for 
the  prosecution  of  the  action,  for  the  return  of  the  property  to 
the  defendant,  if  return  thereof  be  adjudged,  and  for  the  pay- 
ment to  him  of  such  sum  as  may  from  any  cause  be  recovered 
against  the  plaintiff,  the  sheriff  must  forthwith  take  the  property 
described  in  the  affidavit,  if  it  be  in  the  possession  of  tlie  de- 
fendant or  his  agent,  and  retain  it  in  his  custody.  The  sheriff 
must,  without  delay,  serve  on  the  defendant  a  copy  of  the  affi- 
davit, notice,  and  undertaking. 


Chap.  8.] 


CALIFORNIA. 


49 


The  defendant  may  within  two  days  after  the  service  of  a  copy 
of  the  affidavit  and  undertaking  give  notice  to  the  sheriff  that  he 
excepts  to  the  sufficiency  of  the  sureties.  If  he  fails  to  do  so,  he 
is  deemed  to  have  waived  all  objections  to  them.  When  the  de- 
fendant excejDts,  the  sureties  must  justify  on  notice  before  the 
judge  or  county  clerk;  and  the  sheriff  is  responsible  for  the  suf- 
ficiency of  the  sureties  until  the  objection  to  them  is  either 
waived  or  until  they  justify. 

At  any  time  before  the  delivery  of  the  property  to  the  plain- 
tiff, the  defendant  may,  if  he  do  not  except  to  the  sureties  of 
the  plaintiff,  require  the  return  thereof,  upon  giving  to  the  sheriff 
a  written  undertaking,  executed  by  two  or  more  sufficient  sure- 
ties, to  the  effect  that  they  are  bound  in  double  the  value  of  the 
property,  as  stated  in  the  affidavit  of  the  plaintiff,  for  the  deliv- 
ery thereof  to  the  plaintiff,  if  such  delivery  be  adjudged;  and  for 
the  payment  to  him  of  such  sum  as  may,  for  any  cause,  be  re- 
covered against  the  defendant.  If  a  return  of  the  property  be 
not  so  required  v^'ithin  five  days  after  the  taking  and  service  of 
notice  to  the  defendant,  it  must  be  delivered  to  the  plaintiff,  un- 
less claimed  by  a  third  party,  as  hereafter  set  forth.  The  de- 
fendant's sureties,  upon  notice  to  the  plaintiff  of  not  less  than 
two  or  more  than  five  days,  must  justify  before  a  judge  or  county 
clerk;  and  upon  such  justification,  the  sheriff  must  deliver  the 
jDroperty  to  the  defendant.  The  sheriff  is  responsible  for  the  de- 
fendant's sureties  until  they  justify,  or  until  the  jus  ^c.  tion  is 
completed  or  waived,  and  may  retain  the  property  until  that 
time;  if  they,  or  others  in  their  place,  fail  to  justify  at  the  time 
and  place  appointed,  he  must  deliver  the  property  to  the  plain- 
tiff. 

If  the  property  taken  be  claimed  by  any  other  person  than  the 
defendant  or  his  agent,  and  such  person  make  affidavit  of  his  ti- 
tle thereto,  or  right  to  the  possession  thereof,  stating  the 
grounds  of  such  title  or  right,  and  serve  the  same  upon  the  sheriff, 
the  sheriff  is  not  bound  to  keep  the  property  or  deliver  it  to  the 
plaintiff,  unless  the  plaintiff,  on  demand  of  him,  or  his  agent, 
indemnify  the  sheriff  against  euch  claim,  by  an  undertaking,  by 
two  sufficient  sureties;  and  no  clrim  to  such  property  by  any 
other  person  than  the  defendant  or  his  agent  is  valid  against  the 
sheriff,  unless  so  made. 


50 


CALIFOIINIA. 


[Part  3. 


The  provisions  contained  in  this  chapter  are  applicable  to 
cases  in  Justices' Courts,  the  word  "constable"  being  substituted 
for  "sheriff,''  and  "justice"  for  "judge." 


CHAPTER  IX. 


AKREST  AND  BAIL. 


The  defendant  may  be  arrested  in  a  civil  action  in  the  following 
cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a 
cause  of  action  arising  upon  contract,  express  or  implied,  when 
the  defendant  is  about  to  depart  from  the  State,  with  intent  to 
defraud  his  creditors. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled,  or  fraudulently  misapplied,  or  converted  to  his  own 
use,  by  a  public  officer,  or  an  officer  of  a  corporation,  or  an  at- 
torney, factor,  broker,  agent,  or  clerk,  in  the  course  of  his  em- 
ployment as  such,  or  by  any  other  person  in  a  fiduciaiy  capacity; 
or  for  misconduct  or  neglect  in  office,  or  in  a  professional  em- 
ployment, or  for  a  willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property  or  any  part  thereof  has 
been  concealed,  removed,  or  disposed  of,  to  prevent  its  being 
found  or  taken  by  the  sheriff. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contract- 
ing the  debt,  or  incurring  the  obligation  for  which  the  action  ia 
brought;  or  in  concealing  or  disposing  of  the  property,  for  the 
taking,  detention,  or  conversion  of  which  the  action  is  brought, 

5.  When  the  defendant  has  removed  or  disposed  of  his  prop- 
erty, or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 


Chap.  9.] 


CALIFORNIA. 


61 


at" 


ity; 


[erty 

has 

leing 


i-act- 
)n  i& 
the 
ight, 
)rop- 


The  order  of  arrest  is  made  upon  affidavit  of  the  plaintiff,  or 
some  other  person,  that  a  sufficient  cause  of  action  exist i,  and 
the  case  is  one  of  those  mentioned  above. 

Before  making  the  order  of  arrest,  the  judge  must  require  a 
written  undertaking  on  the  part  of  the  plaintiff,  with  sureties  in 
an  amount  to  be  fixed  by  the  judge,  which  must  be  at  least  five 
hundred  dollars,  to  the  effect  that  the  plaintiff  will  pay  all  costs 
which  may  be  adjudged  to  the  defendant,  and  all  damages  which 
he  may  sustain  by  reason  of  the  arrest,  if  the  same  be  wrongful, 
or  without  sufficient  cause,  not  exceeding  the  sum  specified  in 
the  undertaking. 

In  the  Justice's  Court,  the  defendant  may  be  arrested  in  a 
civil  action,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  money  or  damages,  on  a 
cause  of  action  arising  upon  contract,  express  or  implied,  when 
the  defendant  is  about  to  depart  from  the  State,  with  intent  to 
defraud  his  creditors. 

•2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled  or  fraudulently  misapplied,  or  converted  to  his  own 
use,  by  one  who  received  it  in  a  fiduciary  capacity. 

3.  When  the  defendant  has  been  guilty  of  a  fraud  in  contract- 
ing the  debt  or  incurring  the  obligation  for  which  the  action  is 
br  ought. 

4.  When  the  defe  ndant  has  removed,  concealed,  or  disposed 
of  his  property,  or  is  about  to  do  so,  with  intent  to  defraud  his 
criditors. 

No  female  can  be  arrested  in  an  action  in  the  Justice's  Court 
Bafore  an  order  of  arrest  can  be  made,  the  party  applying  must 
prove  to  the  satisfaction  of  the  justice,  by  the  affidavit  of 
himself,  or  some  other  person,  the  facts  upon  which  the  applica- 
tion is  founded,  and  the  plaintiff  must  execute  and  deliver  to  the 
justice  a  written  undertaking  in  the  sum  of  three  hundred  dol- 
lars, with  sufficient  sureties,  to  the  effect  that  the  plaintiff  will 
pay  all  costs  that  may  be  adjudged  to  the  defendant,  and  all 
danages  which  he  may  sustain  by  reason  of  the  arrest,  if  the 
sa  ne  be  wrongful  or  without  sufficient  cause,  not  exceeding  the 
sum  specified  in  the  undertaking. 


52 


CALiFc  mix. 


fPai-t  3. 


CHAPTER  X. 


INJUNCTIONS. 

An  injunction  is  a  writ  or  order  requiring  a  person  to  refrain 
from  a  particular  act.     It  may  be  granted  in  the  following  cases : 

1.  When  it  appears  by  the  complaint  that  the  plaintiff  is  enti- 
tled to  the  relief  demanded,  and  such  relief,  or  any  proof  there- 
of, consists  in  restraining  the  comminsion  or  continuance  of  the 
act  complained  of,  either  for  a  limited  period  or  perpetually. 

2.  \'7hen  it  aj)j)ears  by  the  complaint  or  affidavit,  that  the  com- 
mission or  continuance  of  some  act  during  the  litigation  would 
produce  waste,  great  or  irreparable  injury  to  the  plaintiff'. 

3.  When  it  appears,  during  the  litigation,  that  the  defendant 
is  doing  or  threatens,  or  is  about  to  do,  or  is  procuring  or  suf- 
fering to  be  done,  some  act  in  violation  of  the  plaintiff's  rights 
respecting  the  subject  of  the  action,  and  tending  to  render  the 
judgment  ineffectual. 


CHAPTER  XI. 


JUDGMENTS  AND  JUDGMENT  LIENS. 


A  judgi)aent  is  the  final  determination  of  the  rights  of  the  i)ar- 
ties  in  an  action  or  proceeding. 

A  judgment  may  be  given  for  or  against  one  or  more  of  sev- 
eral plaintiffs,  and  for  or  against  one  or  more  of  sevei*al  defend- 
ants; and  it  may,  when  the  justice  of  the  ease  requires  it,  deter- 
mine the  ultimate  rights  of  the  parties  on  each  side,  as  between 
themselves. 


Chap.  11.  J 


CALIFORNIA. 


1- 

Ld 

lit 
if- 
its 


In  an  action  against  several  defendants,  the  Court  may,  in  its 
discretion,  render  judgment  against  one  or  more  of  them,  leav- 
ing the  action  to  proceed  against  the  others,  whenever  n  several 
judgment  is  proper. 

The  relief  granted  to  the  plaintifi',  if  there  be  no  answer,  can 
not  exceed  that  which  he  shall  have  demanded  in  his  complaint; 
but  in  any  other  case,  the  Court  may  grant  him  any  relief  con- 
sistent with  the  case  made  by  the  complaint  and  embraced  within 
the  issue, 

An  action  may  be  dismissed  or  a  judgment  of  non-suit  entered 
in  the  following  cases ; 

1.  By  the  plaintiff  himself ,  at  any  time  before  trial,  upon  the 
payment  of  costs,  if  a  counter-claim  has  not  been  made  or  af- 
firmative relief  sought  by  the  croes-complaint  or  answer  of  de- 
fendant. 

2.  By  either  paHy,  upon  the  written  consent  of  the  other. 

3.  By  the  Coart,  when  the  plaintiff  fails  to  appear  on  the  trial, 
and  the  defendant  appears  and  asks  for  the  dismissal. 

4.  By  the  Court,  whm,  upon  the  trial,  and  before  the  final 
submission  of  the  case,  the  plaintiff  abaxidons  it. 

5.  By  the  Court,  upon  motion  of  the  defendant,  when,  upon 
the  trial,  the  plaintiff  fails  to  prove  a  sufficient  case  for  the  jury. 

In  a]'  other  cases,  judgment  must  be  rendered  on  the  merits. 


Judgment  upon  Failure  i  '  Answer. 


)ar- 

sev- 
end- 
eter- 
weeu 


Judgment  may  be  h^d  if  the  defen  lant  fail  to  answer  or  demur 
to  the  complaint  within  the  time  specified  in  the  summons,  or 
within  such  further  time  as  may  have  been  granted,  as  follows: 

1,  In  an  action  arising  upon  (contract  for  the  recovery  of  money 
or  damages  only,  the  clerk,  upon  application  of  the  plaintiff, 
must  enter  the  default  of  the  defendant,  and  immediately  there- 
after enter  judgment  for  the  amount  sj^ecified  in  the  summons, 
including  ^ae  costs,  against  the  defendant,  or  against  one  or  more 
of  several  defendants,  when  the  action  is  against  two  or  more 
defendants,  jointly  or  severally  liable  on  a  contract,  and  the  sum- 
mons is  served  on  one  or  more,  and  not  on  all  of  them,  in  which 
case  the  plaintiff  may  proceed  against  th*^  defendants  served  in 
the  same  manner  as  if  they  were  the  only  defendants. 


64 


CALIFORNIA. 


[Part  3. 


2.  In  other  actions,  the  clerk  must  enter  the  default  of  the  de- 
fendant; and  thereafter  the  plaintiff  may  apply  at  the  first  or  any 
subsequent  term  of  the  Court  for  the  relief  demanded  in  the  com- 
plaint. If  the  taking  of  an  account,  or  the  proof  of  any  fact, 
is  necess,  ry  to  enable  the  Court  to  give  judgment,  or  to  carry 
the  judgment  into  effect,  the  Court  may  take  the  account  or  hear 
the  proof;  or  may,  in  its  discretion,  order  a  reference  for  that 
purpose.  And  when  the  action  is  for  damages,  in  whole  or  in 
part,  the  Court  may  order  the  damages  to  be  assessed  by  a  jury: 
or  if,  to  determine  the  amount  of  damages,  the  examination  of 
a  long  account  be  involved,  by  a  reference  as  above  provided. 

3.  In  an  action  where  the  service  of  summons  was  by  publi- 
cation, the  plaintiff,  upon  the  expiration  of  the  time  for  answer- 
ing, may,  upon  proof  of  the  publication,  and  that  no  answer 
has  been  filed,  apply  for  judgmeat;  and  the  Court  mast  there- 
upon require  proof  to  be  made  of  the  demand  mentioned  in  the 
complaint;  and  if  the  defendant  be  not  a  resident  of  the  State, 
must  require  the  plaintiff*  or  his  agent  to  be  examined  on  oath 
respecting  any  payments  that  have  been  made  to  the  plaintiff, 
or  to  any  ore  for  his  use,  on  account  of  such  demand,  and  may 
render  judgment  for  the  amount  which  he  is  entitled  to  recover. 

Judgment  by  Confession. 

A  judgment  by  confession  may  be  entered  without  action, 
either  for  money  due  or  to  become  due,  or  to  secure  anj'  per'on 
against  contingent  liability  on  behalf  of  the  defendant,  or  both. 

A  statement  in  writing  must  be  made,  signed  by  the  defend- 
ant and  verified  by  his  oath,  to  the  following  effect : 

1.  It  must  authorize  the  entry  of  judgment  for  a  specified 
sum. 

2.  If  it  be  for  money  due,  or  to  become  due,  it  must  state 
concisely  the  facts  out  of  which  it  arose,  and  show  that  the  sum 
confessed  therefor  is  justly  due,  or  to  become  due. 

3.  If  it  be  for  the  purpose  of  securing  the  plaintiff  against  a 
contingent  liability,  it  must  state  concisely  the  facts  constituting 
the  liability,  and  show  that  the  sum  confessed  tlierefor  does  not 
exceed  the  same. 


Chap.  11.] 


CALIFORNIA. 


65 


Judgment  on   Proceedings  Without  Action  by  Submission   or  a 

Controversy. 

Parties  to  a  question  in  difference,  which  might  be  the  subject 
of  a  civil  action,  may,  without  action,  agi'ee  upon  a  case  con- 
taiug  the  facts  upon  which  the  controversy  depends,  and  pre- 
sent a  submission  of  the  same  to  any  Court  which  would  have 
jurisdiction,  if  an  action  had  been  brought;  but  it  must  appear 
by  affidavit  that  the  controversy  is  real,  and  the  proceedings  in 
good  faith  to  determine  the  rights  of  the  parties.  The  Court 
must,  thereupon,  hear  and  determine  the  case,  and  render  judg- 
ment thereon,  as  if  an  action  were  pending. 

Judgment  after  VERincT, 


led 
bate 

*t  a 

ting 

not 


When  trial  by  jury  has  been  ha  '  I'ltdgment  must  be  entered 
by  the  Clerk  in  conformity  to  tin  diet,  within  twenty-four 

hours  after  the  rendition  of  the  verdict,  nnle  the  Court  order 
the  case  to  be  reserved  for  argument  for  further  consideration, 
or  grant  a  stay  of  proceedings. 

Upon  the  trial  of  a  question  of  fact  by  the  Court,  its  decision 
must  be  given  in  writing,  and  filed  with  the  Clerk,  within  thirty 
-days  after  the  cause  is  submitted  for  decision. 

Judgment  upon  the  decision  must  be  entered  accordinj^ly. 

On  a  judgment  for  the  plaintiff  upon  an  issue  of  law,  Ik  ay 
proceed  as  in  the  case  of  judgment  upon  failure  to  annw  If 
judgment  be  for  the  defendant  upon  an  issue  of  law,  and  the 
taking  of  an  account  or  the  proof  of  any  fact  be  necessary  to 
enable  the  Court  to  complete  the  judgment,  a  reference  may  be 
ordered. 

Proceedings  against  Joint  Debtors. 

When  a  judgment  is  recovered  against  one  or  more  of  several 
persons,  jointly  indebted  upon  an  obligation,  those  who  were 
not  originally  served  with  the  simimons,  and  did  not  appear  to 
the  action,  may  })e  summoned  to  show  cause  why  they  should 
not  be  bound  by  the  judgment  in  the  same  manner  as  though 
they  had  been  originally  served  with  the  summons. 


56 


CALIFORNIA. 


[Part  3. 


Pbooeedings  on  Offer  of  Defendant  to  Compromise. 

The  defendant  may,  at  any  time  before  the  trial  or  judgment, 
serve  upon  the  plaintiff  an  offer  to  allow  judgment  to  be  taken 
against  him  for  the  sum  or  property,  or  to  the  effect  therein  spe- 
cified. If  the  plaintiff  accept  the  offer,  and  give  notice  thereof 
within  five  days,  he  may  file  the  offer,  with  proof  of  notice  of 
acceptance,  and  the  clerk  must  thereupon  enter  judgment  ac- 
cordingly. If  the  notice  of  acceptance  be  not  given,  the  offer 
is  to  be  deemed  withdrawn,  and  cannot  be  given  in  evidence 
upon  the  trial ;  and  if  the  plaintiff  fail  to  ol)tain  a  more  favor- 
able judgment,  he  cannot  recover  costs,  but  must  pay  the  de- 
fendant's costs  from  the  time  of  the  offer. 

Gold  Coin  or  Currency  Judgment.. 

In  an  action  on  a  contract  or  obligation  in  writing,  for  the  di- 
rect payment  of  money,  made  payable  in  a  specified  kind  of 
money  or  currency,  judgment  for  the  plaintiff,  whether  it  be  by 
default  or  after  verdict,  may  follow  the  contract  or  obligation^ 
and  be  made  payable  in  the  kind  of  money  or  currency  specified 
therein;  and  in  all  actions  for  the  recovery  of  money,  if  the 
plaintiff  allege  in  his  complaint  that  the  same  was  understood 
and  agreed  by  the  respective  parties  to  be  payable  in  a  specified 
kind  of  money  or  currency,  and  this  fact  is  admitted  by  the  de- 
fault of  the  defendant  or  established  by  evidence,  the  judgment 
for  the  plaintiff  must  be  made  payable  in  the  kind  of  money  or 
currency  so  alleged  in  the  complaint ;  and  in  an  action  against 
any  person  for  the  recovery  of  money  received  1  such  person 
in  a  fiduciary  capacity,  or  to  the  use  of  another,  judgment  for 
the  plaintiff  must  be  made  payable  in  the  kiim  of  money  or 
currency  so  received  by  such  person. 

Judgment  in  Replevin. 


In  an  action  to  recover  the  possession  of  personal  property ,^ 
judgment  for  the  plaintiff  may  be  for  the  possession  or  value 
thereof,  in  case  a  delivery  cannot  be  had,  and  damages  for  the 


Chap.  i:.l 


CALIFORNIA. 


57 


detention.  If  the  property  has  been  delivered  to  the  plaintiff, 
and  the  defendant  claim  a  return  thereof,  judgment  for  the  de- 
fendant may  be  for  a  return  of  the  property,  or  the  value  there- 
of, in  case  a  return  cannot  be  had,  and  damages  for  taking  and 
withholding  the  same. 

Judgment  Lien. 

From  the  time  the  judgment  is  docketed  it  becomes  a  lien 
upon  all  the  real  property  of  the  judgment  debtor,  not  exempt 
from  execution,  in  the  county,  owned  by  him  at  the  time,  or 
which  he  may  afterwards  acquire,  until  the  lien  ceases.  The 
lien  continues  for  two  years,  unless  the  enforcement  of  the 
judgment  be  stayed  on  appeal  by  execution  of  a  sufficient  un- 
dertaking, in  which  case  the  lien  of  the  judgment  ceases.  [See 
elsewhere,  how  judgments  in  Justices'  Courts  are  made  a  lieu 
on  real  property.] 

A  transcript  of  the  original  docket,  certified  by  the  clerk,  may 
be  tiled  with  the  recorder  of  any  other  county;  and  from  the 
time  of  the  filing  the  judgment  becomes  a  lien  upon  all  the  real 
pro ^) arty  of  the  judgment  debtor,  not  exempt  from  execution, 
in  such  €Ounty,  owned  by  him  at  the  time,  or  which  he  may 
afterwards,  and  before  the  lien  e\  ires,  acquire.  The  lien  con- 
tinues for  two  years. 


tor 
or 


^ty, 
blue 
the 


Provisions  in  Justices'  Courts. 

Judgment  by  default. 
If  the  defendant  fail  to  appear  and   answer   or  demur   at  the 
time   specified  in   the  summons,   then,  upon  proof  of  service 
of  the  summons,  the  following  proceedings  must  be  had  : 

1.  If  the  action  is  based  upon  a  contract,  and  is  for  the  re- 
covery of  money  or  damages  only,  the  Court  must  reader  judg- 
in  favor  of  plaintiff  for  the  sum  specified  in  the  summons. 

2.  In  all  other  actions,  the  Court  must  hear  the  evidence  of- 
fered by  the  plaintiff,  and  must  render  judgment  for  such  a  sum 
(not  exceeding  the  amount  stated  in  the  summons)  as  appears 
by  such  evidence  to  be  just. 

In  the  following  cases  the  same  proceedings  must  be  had,  and 


58 


OALIFORNU. 


[Part  3. 


judgment  must  be  rendered  in  like  manner,  as  if  the  defendant 
failed  to  appear  and  answer  or  demur: 

1.  If  the  complaint  has  beei;  amended,  and  the  defendant 
fails  to  answer  it  as  amended,  within  the  time  allowed  by  the 
Court. 

2.  If  the  demurrer  to  the  complaint  is  overruled,  and  the  de- 
fendant fails  to  answer  at  once. 

3.  If  the  demurrer  to  the  answer  is  sustained,  and  the  de- 
fendant fails  to  amend  the  answer  within  the  time  allowed  by 
the  Court. 

Judgtnentg  other  than  by  default. 

Judgments  upon  confession  may  be  entered  up  in  any  Jus- 
tice's Court  specified  in  the  confession. 

Judgment  that  the  action  be  dismissed  without  prejudice  to  a 
new  action,  may  be  entered  with  costs  in  the  following  cases: 

1.  When  the  plaintiff  voluntarily  dismisses  the  action  before 
it  is  finally  submitted. 

2.  When  he  fails  to  appear  at  the  time  specified  in  the  sum- 
mons, or  at  the  time  to  which  the  action  has  been  postponed,  or 
within  one  hour  thereafter. 

3.  When  after  a  demurrer  to  the  complaint  has  been  sus- 
tained, the  plaintiff  fails  to  amend  it  within  the  time  allowed 
by  the  Court. 

4.  When  it  is  objected  at  the  trial,  and  appears  by  the  evi- 
dence, that  the  action  is  brought  in  the  wrong  county,  or  town- 
ship, or  city;  but  if  the  objection  is  taken  and  overruled,  it  is 
cause  only  of  reversal  on  appeal,  and  does  not  otherwise  invali- 
date the  judgment;  if  not  taken  at  the  trial,  it  is  waived. 

When  a  trial  by  jury  has  been  had,  judgment  must  be  entered 
by  the  justice,  at  once,  in  conformity  with  the  verdict. 

When  the  trial  is  by  the  Coui't,  judgment  must  be  entered  at 
the  end  of  the  trial. 

When  the  amount  found  due  to  either  party  exceeds  the  8um 
for  which  the  justice  is  authorized  to  enter  judgment,  such  party 
may  remit  the  excess,  and  judgment  may  be  entered  for  the 
residue. 

If  the  defendant,  at  any  time  before  the  trial,  offer  in  writing 
to  allow  judgment  to  be  taken  against  hira  for  a  specific  sum, 


Chap.  12.] 


CALIFORNIA. 


59 


the  plaintiff  may  immediately  have  judgment  therefor,  with  the 
costs  then  accrued;  but  if  he  do  not  accept  such  offer  before 
the  trial,  and  fail  to  recover  in  the  action  a  sum  in  excess 
of  the  offer,  he  cannot  recover  costs,  but  costs  must  be  adjudged 
against  him,  and  if  he  recover,  be  deducted  from  his  recovery. 
The  offer  and  failure  to  accept  it  cannot  be  given  in  evidence, 
nor  affect  the  recovery  otherwise  than  as  to  costs. 

The  justice  must  tax  and  include  in  the  judgment  the  costs 
allowed  by  law  to  the  prevailing  party. 

An  abstract  of  the  judgment  may  be  filed  and  docketed  in  the 
office  of  the  county  clerk  of  the  county  in  which  the  judgment 
was  rendered,  and  must  be  docketed  in  the  judgment  docket  of 
the  County  Court. 

A  judgment  rendered  in  a  Justice's  Court  creates  no  lien  upon 
any  land  of  the  defendant,  unless  an  abstract  of  the  judgment 
is  filed  and  recorded  in  the  office  of  the  recorder  of  the  county 
in  which  the  lands  are  situated;  when  so  filed  and  recorded, 
such  a  judgment  is  a  lion  upon  the  lands  of  the  judgment  debtor 
situated  in  that  county. 


CHAPTER  XII. 


red 

at 

um 
tity 
the 

ing 
im. 


EXECUTION— SALE  AND  REDEMPTION. 

The  party  in  whose  favor  judgment  is  given  may  at  any  time, 
within  five  years  after  the  entry  thereof,  have  a  writ  of  execu- 
tion issued  for  its  enforcement — same  in  Justice  Court  actions, 
xhe  execution  may  be  made  returnable  at  any  time  not  less  than 
ten  nor  more  than  sixty  days  after  its  receipt  by  the  sheriff  or 
constable. 

Executions  may  at  the  same  time  be  issued  to  different  coun- 
ties. 

In  Justices'  Courts,  the  justice  before  whom  the  action  is 
brought  may  issue  an  execution  directed  to  the  sheriff  or  con- 
stable of  the  county  in  which  judgment  is  obtained;  when  it  is 
desired   to  issue  execution  directed  to  the   sheriff  of  another 


60 


CALIFOBMIA. 


[Part  3. 


county,  it  is  necessary  to  file  an  abstract  of  the  judgment  with 
the  county  clerk  of  the  county  within  which  the  judgment  is  ob- 
tained, and  have  him  issue  tht  execution. 

Notwithstanding  the  death  of  a  party  after  the  judgment,  ex- 
ecution thereon  may  be  issued,  or  it  may  be  enforced  as  follows: 

1.  In  the  case  of  the  death  of  the  judgment  creditor,  upon 
the  application  of  his  executor  «r  administrator,  or  successor  in 
interest. 

2.  In  the  case  of  the  judgment  debtor,  if  the  judgment  be  for 
the  recovery  of  real  or  personal  property,  or  the  enforcement  of 
alien  thereon. 

When  any  judgment  has  been  rendered  for  or  against  the  testa- 
tor or  intestate  in  his  lifetime,  no  execution  shall  issue  thereon 
after  his  death,  except  as  above  provided.  If  execution  is  act- 
ually levied  upon  any  property  of  the  decedent  before  his  death, 
the  same  may  be  sold  for  the  satisfaction  thereof;  and  the  officer 
making  the  sale  must  account  to  the  executor  or  administrator 
for  any  8uri)lus  in  his  hands. 

The  following  property  is  exempt  from  execution  except  upon 
a  judgment  recovered  for  its  price,  or  upon  a  mortgage  thereon: 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  two  hundred 
dollars. 

2.  Necessary  household,  table  and  kitchen  furniture,  including 
one  sewing  machine,  stoves,  stove-pipes  and  stove  furniture, 
wearing  apparel,  beds,  bedding  and  bedsteads,  hanging  pic- 
tures oil  paintings  and  drawings  drawn  or  painted  by  any  mem- 
ber of  the  family,  and  family  portraits,  and  their  necessary 
frames,  and  provisions  actually  provided  for  individual  or  family 
use,  sufficient  *or  three  months,  and  three  cows  and  their  suck- 
ing calves,  four  hogs  with  their  sucking  pigs,  and  food  for  such 
cows  and  hogs  for  one  month. 

3.  The  farming  utensils  or  implements  of  husbandry  of  the 
judgment  debtor;  also,  two  oxen  or  two  horses,  or  two  mules  and 
their  harness,  one  cart  or  wagon,  a^d  food  for  such  oxen,  horses, 
or  mules  for  one  month;  also,  all  seed  grain  or  vegetables  actu- 
ally provided,  reserved  or  on  hand,  for  the  purpose  of  planting 
or  sowing  at  any  time  within  the  ensuing  six  months,  not  ex- 
ceeding in  value  the  sum  of  two  hundred  dollars,  and  seventy- 
five  bee-hivf  s,  and  one  horse  and  vehicle  belonging  to  any  per- 


Chap.  12. 1 


CAUFORNIA. 


61 


the 
and 
•rses, 
actu- 
ting 
;  ex- 
enty- 
X>er- 


son  who  is  maimed  or  cripple  i,  and  the  same  is  necessary  in  his 
business. 

4.  Tools  or  implements  of  a  mechanic  or  artisan,  necessary  to 
carry  on  trade;  the  notarial  seal  and  records  and  office  furniture 
of  a  notary  public;  the  instruments  and  chest  of  a  surgeon,  phy- 
sician, surveyor  and  dentist,  necessary  to  the  exercise  of  their 
profession,  with  their  scientific  and  professional  libraries  and 
necessary  office  furniture;  the  professional  libraries  of  attorneys, 
judges,  ministers  of  the  gosj)el,  editors,  school  teachers  and  mu- 
sic teachers,  and  their  necessary  office  fm-niture;  also  the  mu- 
sical instruments  of  music  teachers  actually  used  by  them  in 
giving, instructions,  and  all  the  indexes,  abstracts,  books,  papers, 
maps  and  office  furniture  of  a  searcher  of  recoi'ds  necessary  to  be 
used  in  his  profession. 

5.  The  cabin  or  dwelling  of  a  miner,  not  exceeding  in  value 
the  sum  of  five  hundred  dollars;  also  his  sluices,  pipes,  hose, 
windlass,  derrick,  cars,  pumps,  tools,  implements  and  appliances 
necessary  for  carrying  on  any  kind  of  mining  operations,  not  ex- 
ceeding in  value  the  aggregate  sum  of  five  hundred  dollars;  and 
two  horses,  mules  or  oxen,  with  their  harness;  and  food  for  such 
horses,  mules  or  oxen  for  one  month,  when  necessary  to  be  used 
in  any  whim,  windlass,  derrick,  car,  pump  or  hoisting  gear,  and 
also  his  mining  claim  actually  worked  by  him,  not  exceeding  in 
value  one  thousand  dollars. 

6.  Two  oxen,  two  horses  or  two  mules,  and  their  harness;  one 
cart  or  wagon,  one  dray  or  truck,  one  coupee,  one  hack  or  car- 
riage for  one  or  two  horses,  by  the  use  of  which  a  cartman,  dray- 
man, truckman,  huckster,  peddler,  hackman,  teamster  or  other 
laborer  habitually  earns  his  living;  and  one  horse,  with  vehicle 
and  harness,  or  other  equipments,  used  by  a  physician,  surgeon, 
constable  or  minister  of  the  gospel  in  the  legitimate  practice  of 
his  profession  or  business,  with  food  for  such  oxen,  horses  or 
mules  for  one  month. 

7.  Poultry,  not  exceeding  in  value  twenty-five  dollars. 

8.  The  earnings  of  the  judgment  debtor  for  his  personal  ser- 
vices rendered  at  any  time  w'^hin  thirty  days  next  preceding  the 
levy  of  execution  or  levy  of  attachment,  when  it  appears  by  the 
debtor's  affidavit  or  otherwise  that  such  earnings  are  necessary 


62 


CALIFORNIA. 


[Part  3. 


for  the  use  of  his  family  residing  in  this  State,  supported  wholly 
or  in  part  by  his  labor;  but  where  the  debts  are  incurred  by  any 
such  person,  or  his  wife  or  family,  for  the  common  necessaries 
of  life,  the  one  half  of  such  earnings  above  mentioned  are,  nev- 
ertheless, subject  to  execution,  garnishment  or  attachment  to 
satisfy  debts  so  ineun-ed. 

9.  The  shares  held  by  a  member  of  a  homestead  association 
duly  incorporated,  not  exceeding  in  value  one  thousand  dollars, 
if  the  person  holding  the  shares  is  not  the  owner  of  a  homestead 
under  the  law  of  this  State;  all  the  nautical  instruments  and  wear- 
ing apparel  of  any  master,  officer  or  seaman  of  any  steamer  or 
other  vessel. 

10.  All  moneys,  benefits,  privileges  or  immunities  accruing,  or 
in  any  manner  growing  out  of  any  life  insurance  on  the  life  of 
the  debtor,  if  the  annual  premiums  paid  do  not  exceed  five 
hundred  dollars. 

11.  All  fire  engines,  hooks  and  ladders,  with  the  carts,  trucks 
and  carriages,  hose,  buckets,  implements,  and  apparatus  thereto 
appertaining,  and  all  furniture  and  uniform  of  any  fire  company 
or  department  organized  under  any  law  of  this  State. 

12.  AH  arms,  uniforms  and  accoutrements  required  by  law  to 
be  kept  by  any  person;  and  also  one  gun,  to  be  selected  by  the 
debtor. 

13.  All  court-houses,  jails,  public  offices  and  buildings,  lots, 
grounds  and  personal  property,  the  fixtures,  furniture,  books, 
papers,  and  appurtenances  belonging  and  pertaining  to  the 
court-house,  jail,  and  public  offices  belonging  to  any  county  of 
this  State;  and  all  cemeteries,  public  squares,  parks  and  places, 
public  buildings,  town  halls,  markets,  buildings  for  the  use  of 
fire  departments  and  military  organizations,  and  [the  lots  and 
grounds  thereto  belonging  and  appertaining,  owned  or  held  by 
any  town  or  incoi-porated  city,  or  dedicated  by  such  town  or 
city  to  health,  ornament,  or  public  use,  or  for  the  use  of  any  fire 
or  militaiy  company  organized  under  the  laws  of  this  State. 

For  exemption  of  homesteads,  see  "Homesteads." 


mmmimim 


m 


Chap.  12.1 


CALIFORNIA. 


68 


NoTicR  OF  Sale. 

Before  the  sale  of  property  on  execution,  notice  thereof  must 
be  given  as  follows:    [Same  in  Justice  Court  actions.] 

1.  In  the  case  of  perishable  property:  by  posting  written  no- 
tice of  the  time  and  place  of  sale  in  three  public  places  of  the 
township  or  city  where  the  sale  is  to  take  place,  for  such  time  as 
may  be  reasonable,  consideiing  the  character  and  condition  of 
the  property. 

2.  Incase  of  other  personal  property:  by  posting  a  similar 
no*^ice  in  three  public  places  in  the  township  or  city  wher  .  the 
sale  is  to  take  place,  for  not  less  than  five  nor  more  than  ten 
days. 

3.  In  case  of  real  property:  by  posting  a  similar  notice  par- 
ticularly describing  the  property,  for  twenty  days,  in  three  pub- 
lic places  of  the  township  or  city  where  the  property  is  situated, 
and  also  where  the  property  is  to  be  sold,  and  publishing  a  copy 
thereof  once  a  week  for  the  same  period,  in  some  newspaper 
published  in  the  county,  if  there  be  one. 

Sale  of  Real  Property — When  Absolute  or  Not. 

Upon  a  sale  of  real  propeity,  the  purchaser  is  substituted  to 
and  acquires  all  the  right,  title,  and  interest,  and  claim  of  the 
judgment  debtor  thereto;  and  when  the  estate  is  less  than  a 
leasehold  of  two  years'  unexpired  term,  the  sale  is  absolute.  In 
other  cases  the  property  is  subject  to  redemption. 

Certificate  of  Sale  op  Real  Estate, 


by 


The  officer  must  give  the  purchaser  a  cei*tificate  of  sale,  and  a 
duplicate  of  such  certificate  must  be  filed  by  the  officer  in  the 
office  of  the  recorder  of  the  county. 

By  Whom  Prophrty  may  be  Redeemed,  and  When. 

Property  sold,  subject  to  redemption,  as  above  provided,  or 
any  part  sold  separately,  may  be  redeemed  in  the  manner  here- 
iimfter  provided,  by  the  following  persons  or  their  successors  in 
interest: 


64 


OALIFOHNIA. 


[Pai-t  3. 


1.  The  judgment  debtor,  or  his  succeasor  in  interest,  in  the 
whole  or  any  part  of  the  property. 

2.  A  creditor,  having  a  hen  by  judgment  or  mortgage  on  the 
property  sold,  or  on  some  share  or  part  thereof  subsequent  to 
that  on  which  the  property  was  sold. 

The  judgment  debtor  or  redemptioner  may  redeem  the  prop- 
erty from  the  purchaser  any  time  within  six  months  after  the 
sale,  on  paying  the  purchaser  the  amount  of  the  i)urcha8e,  with 
two  j)er  cent,  a  month  thereon  in  addition,  up  to  the  time  of  re- 
demption, together  with  the  amount  of  any  assessment  or  taxes 
which  the  purchaser  may  have  paid  thereon  after  the  purchase, 
and  interest  on  such  amount;  and  if  the  purchaser  be  also  a 
creditor,  having  a  prior  lien  to  that  of  the  redemptioner,  other 
than  the  judgment  under  which  sucli  purchase  was  made,  the 
amount  of  such  lien,  with  interest. 

If  property  be  so  redeemed  by  a  redemptioner,  another  re- 
demptioner may,  within  sixty  days  after  the  last  redemption, 
again  redeem  it  from  the  last  redemptioner,  on  paying  the  sum 
paid  on  such  last  redemption,  with  four  per  cent,  thereon  in 
addition,  and  the  amount  of  any  assessment  or  taxes  which  the 
last  redemptioner  may  have  paid  thereon  after  the  redemption 
by  him  with  interest  on  such  amount;  and,  in  addition,  the 
amount  of  any  liens  held  by  said  last  redemptioner  prior  to  his 
own,  with  interest;  but  the  judgment  under  which  the  property 
was  sold  need  not  be  so  paid  as  a  lien.  The  property  may  be 
again,  and  as  often  as  a  redemptioner  is  so  disjiosed,  redeemed 
from  any  previous  redemptioner  within  sixty  days  after  the  last 
redemption,  on  paying  the  sum  paid  on  the  last  previous  re- 
demption, with  fou»  per  cent,  thereon  in  addition,  and  the 
amount  of  any  assessments  or  taxes  which  the  last  previous  re- 
demptioner paid  after  the  redemption  by  him,  with  interest 
thereon;  and  the  amount  of  any  liens,  other  than  the  judgment 
under  which  the  property  was  sold,  held  by  the  last  redemp- 
tioner previous  to  his  own,  with  interest.  Written  notice  of  re- 
demption must  be  given  to  the  sheriff,  and  a  duplicate  filed  with 
the  recorder  of  the  county;  and  if  any  taxes  or  assessments  are 
paid  by  the  redemptioner,  or  if  he  has  or  acquires  any  lien 
other  than  that  upon  which  the  redemption  was  made,  notice 
thereof  must  in  like  manner  be  given  to   the  sheriff,  and  filed 


Hiiiiiiiiiiiii 


Chap.  12] 


CALIFOHNU. 


eft 


with  the  recorder;  and  if  such  notice  be  not  filed,  the  property 
may  be  redeemed  without  paying  such  tax,  assesHmeut,  or  lien, 
If  no  redemption  be  made  within  six  mouths  after  the  sale,  the 
purchaser  or  his  assignee  is  entitled  to  a  conveyance,:  or,  if  so 
redeemed,  whenever  sixty  days  have  elapsed,  and  no  other  re- 
demption has  been  made,  and  notice  thereof  given,  and  the 
time  f  jr  redemption  has  expired,  the  last  redemptiouer  or  his 
assignee  is  entitled  to  a  sheriff's  deed;  but  in  all  cases  the  judg- 
ment debtor  shall  have  the  entire  period  of  six  months  from  the 
date  of  the  sale  to  redeem  the  property.  If  the  judgment 
debtor  redeem,  he  must  take  the  same  payments  as  are  required 
to  effect  a  redemption  by  a  redemptioner.  If  the  debtor  re- 
deem, the  effect  of  the  sale  is  terminated,  and  he  is  restored  to 
his  estate.  Upon  a  redemption  by  the  debtor,  the  person  to 
whom  the  paymsnt  is  made  must  execute  and  deliver  to  him  a 
certificate  of  redemption,  acknowledged  or  proved  before  an 
officer  authorized  to  take  acknowledgments  of  conveyances  of 
real  property.  Such  certificate  must  be  filed  and  recorded  in 
the  office  of  the  recorder  of  the  county  in  which  the  j^roperty  is 
situated. 

Payment  may  be  made  to  the  purchaser  or  redemptioner,  or 
for  him,  to  the  officer  who  made  the  sale. 

A  redemptioner  must  produce  to  the  officer  or  person  from 
whom  he  seeks  to  redeem,  and  sene  with  his  notice  to  the 
sheriff — 

1.  A  copy  of  the  docket  of  the  judgment  under  which  he 
claims  the  right  to  redeem,  certified  by  the  clerk  of  the  Court, 
or  of  the  couaty  where  the  judgment  is  docketed;  or  if  he  re- 
deem upon  a  mortgage  or  other  Jien,  a  note  of  the  record  there- 
of certified  by  the  recorder. 

2.  A  copy  of  any  assignment  necessary  to  establish  his  claims, 
verified  by  the  affidavit  of  himself  or  of  a  subscribing  witness 
thereto. 

3.  An  affidavit  by  himself  or  his  agent,  showing  the  amount 
then  actually  due  on  the  lien. 

Until  the  expiration  of   the  time  allowed  for  redemption,  the 
Court  may  restrain  the  commission  of  waste  on  the  property. 
The  purchaser  from  the  time  of  the  sale  until  a  redemption, 


n  ' 


66 


CALIFORNU. 


[Part  3. 


and  a  redemptioner,  frou.  Ihe  time  of  his  redemption  until  ano- 
ther redemption,  is  entitled  to  receive  from  the  tenant  in  pos- 
session the  rents  of  the  property  sold,  or  the  value  of  the  use 
and  occupation  thereof.  But  when  any  rents  or  profits  have 
been  received  by  the  judgment  creditor  or  purchaser,  or  his  or 
their  assigns,  from  the  propei-tv  thus  sold  preceding  such  re- 
demption, the  amounts  of  such  ren  s  and  profits  shall  be  a 
credit  upon  the  redemption  money  t(  be  paid. 


CHAPTER  XIII. 


PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 


4\ 


When  an  execution  against  property  of  the  judgment  debtor, 
or  any  one  of  several  debtors  in  the  same  judgment,  isBiTed  to 
the  sheriff  of  the  coi.nty  where  he  resides,  or  if  he  do  not  reside 
in  this  State,  to  the  sheriflf  of  tht  county  where  the  judgment 
roll  is  filed,  is  returned  unsatisfied,  m  whole  or  in  part,  the  judg- 
ment creditor,  at  any  time  after  such  return  is  made,  is  entitled 
to  an  order  from  the  judge  of  the  Court,  or  a  county  judge,  re- 
quiring such  judgment  debtor  to  appear  and  answer  concerning 
his  property,  before  such  judge,  or  u  referee  appointed  by  him, 
at  a  time  and  place  specified  in  the  ord^r;  ]iut  no  judgment 
debtor  must  be  required  to  attend  before  a  judge  or  referee  out 
of  the  county  in  which  he  resideH. 

After  the  issuing  of  an  execution  against  property,  and  upon 
proof  by  afl&davit  of  a  party  or  otherwise,  to  the  satisfaction  of 
the  Court,  or  of  a  judge  thereof,  or  county  judge,  that  any  judg- 
ment debtor  has  property  which  he  unjustly  reuses  to  apply  to- 
wards the  satisfaction  of  the  judgment,  such  Court  or  juuj^e  may, 
by  an  order,  require  the  judgment  debtor  to  appear  at  a  specified 
time  and  place  before  Huch  judge,  or  a  referee  appointed  byhim^ 
to  answri-  concerning  tUe  same;  and  such  proceedings  may  there- 


u-.^ 


Chap.  13.] 


CALIFORNIA. 


67 


fpon 
of 

idg- 
to- 

lifted 

iiin» 

liere- 


iipon  be  had  for  the  application  of  the  property  of  the  judgment 
debtor  toward  the  satisfaction  of  the  judgment  as  are  provided 
upon  the  return  of  an  execution.  Instead  of  the  order  requiring 
the  attendance  of  the  judgment  debtor,  the  judge  may,  upon  af- 
fidavit of  the  judgment  creditor,  his  agent  or  attorney,  if  it  appears 
to  him  that  there  is  danger  of  the  debtor  absconding,  order  the 
sheriff  to  arrest  the  debtor  and  bring  him  before  such  judge. 
Upon  being  brought  before  the  judge,  he  may  be  ordered  to  enter 
into  .'in  nndertikijig,  with  sufficient  sdrety,  that  he  will  attend 
from  time  to  time  before  the  judge  or  referee,  as  may  be  directed, 
durinj,'  the  pendency  of  proceedings  and  until  the  final  termination 
thei'oof ,  and  will  not  in  the  meantime  dispose  of  any  portion  of 
his  }noperty,  not  exempt  from  execution.  In  default  of  enter- 
ing into  such  undertkaing  he  may  be  committed  to  prison. 

After  the  issuing  of  an  execution  against  property,  and  be- 
'oie  its  return,  any  person  indebted  to  the  judgment  debtor  may 
pay  to  the  sheriff  the  amount  of  his  debt,  or  so  much  thereof  as 
may  bo  necessary  to  satisfy  the  execution  ;  and  the  sheriff's  re- 
ceipt is  a  sufficiant  discharge  for  the  amount  so  paid. 

After  the  issuing  or  return  of  an  execution  against  property 
of  the  judgment  debtor,  or  of  any  one  of  several  debtors  in  the 
same  judgment,  or  upon  proof,  by  affidavit  or  otherwise,  to  the 
satisfaction  of  the  judge,  that  any  person  or  corporation  lias 
property  of  such  judgment  debtor,  or  is  indebted  to  him  in  an 
amount  exceeding  fifty  dollars,  the  judge  may,  by  an  order,  re- 
quire such  person  or  corporation,  or  any  officer  or  member 
thereof,  to  appear  at  a  specified  time  and  place  before  him,  or  a 
referee  appointed  by  hiin,  and  answer  concerning  the  same. 

Witnesses  may  be  required  to  appear  and  testify  before  the 
jud;.::e  or  referee.  The  judge  or  referee  may  order  any  property 
of  L  judgment  debtor,  not  exempt  from  execution,  in  the  hands 
of  such  debtor  or  any  other  person,  or  d\>e  to  the  judgment 
debtor,  to  be  applied  towards  the  satisfaction  of  the  judgment. 

If  it  appear  that  a  person  or  corporation,  alleged  to  have 
property  of  the  judgment  debtor,  or  to  be  indebted  to  him, 
claims  an  interest  in  the  property  adverse  to  him,  or  denies  the 
debt,  the  Court  or  a  judge  may  authorize,  by  an  order  made  to 
that  effect,  the  judgment  creditor  to  institute  an  action  against 


68 


CALIFORNIA. 


[Part  3. 


«uch  person  or  corporation  for  the  recovery  of  such  interest  or 
debt ;  and  the  Court  or  judge  may,  by  order,  forbid  a  transfer 
or  other  disposition  of  such  interest  or  debt,  until  an  action  can 
be  commenced  and  prosecuted  to  judgment. 

If  any  person,  party,  or  witness  disobey  an  order  of  the  ref- 
eree, proporly  made,  in  proceedings  before  him,  he  may  be  pun- 
ished by  the  Court  or  judge  ordering  the  reference,  for  a  con- 
tempt. 


CHAPTER    XIV. 


COSTS. 


I 


The  general  rule  is,  that  judgment  carries  costs. 

When,  in  an  action  for  the  recovery  of  money  only,  the  de- 
fendant alleges  in  his  answer  that  before  the  commencement  of 
the  action  he  tendered  to  the  plaintiff  the  full  amount  to  which 
he  was  entitled,  and  thereupon  deposits  in  Court  for  the  plaintiff 
the  amount  so  tendered,  and  the  allegation  be  found  to  be  true, 
the  plaintiff  cannot  recover  costs,  but  must  pay  costs  to  the  de- 
fendant. 

When  several  actions  are  brought  on  one  bond,  undertaking, 
promissory  note,  bill  of  exchange,  or  other  instrument  in  writ- 
ing, cr  in  any  other  case  for  the  same  cause  of  action,  against 
several  parties  who  might  have  been  joined  as  defendants  in  the 
same  action ,  no  costs  can  be  allowed  to  the  plaintiff  in  more  than 
one  of  such  actions,  which  may  be  at  his  election,  if  the  i)artie8 
proceeded  against  in  the  other  actions  were,  at  the  commencement 
of  the  previous  action,  openly  within  this  State  ;  but  the  dis- 
bursements of  the  plaintiff  must  bo  allowed  to  him  in  each  ac- 
tion. 


I 


Chap.  14. 


CALIFORNIA. 


69 


SECURinr  FOR  Costs. 

When  the  plaintiff  in  an  action  resides  out  of  the  State,  or  is 
&  foreign  corporation,  security  for  the  costs  and  charges,  which 
may  be  awarded  against  such  plaintiff,  may  be  required  by  the 
defendant,  When  required,  all  proceedings  in  the  action  must 
be  stayed  until  an  undertaking,  executed  by  two  or  more  per- 
sons, is  filed  with  the  clerk,  to  the  effect  that  they  will  pay  such 
costs  and  charges  as  may  be  awarded  against  the  plaintiff  by 
judgment,  or  in  the  progress  of  the  action,  not  exceeding  the 
sum  of  three  hundred  dollars.  A  new  or  additional  undertaking 
may  be  ordered  by  the  Court  or  judge,  upon  proof  that  the 
original  undertaking  is  insuficient  security,  and  proceedings  in 
the  action  stayed  until  such  new  or  additional  undertaking  is 
executed  and  filed.  If  such  security  is  not  given  by  the  plaintiff 
within  thirty  days  after  notice  that  security  is  required,  the 
Court  or  judge  may  order  the  action  dismissed. 


CHAPTER     XV. 


APPEALS  IN  CIVIL  ACTIONS. 


Iking, 
writ- 
rainst 
in  the 
lethan 
Inrties 
lenient 
le  diB- 
k,ch  ac- 


Appeals  in  General. 

Within  what  time  appeals  inay  be  taken  : 

1.  From  a  final  judgment  iu  an  action  or  special  proceeding 
commenced  in  the  Ci?urt  in  which  the  same  is  rendered,  within 
one  year  after  the  entry  of  jurgment.  But  an  exception  to  the 
decision  or  verdict,  on  the  ground  that  it  is  not  supported  by 
the  evidence,  cannot  be  reviewed  on  an  appeal  from  the  judg- 
ment, unless  the  appeal  is  taken  within  sixty  days  after  the  ren- 
dition of  the  judgment. 


i 


: 


70 


CALIFORKIA, 


Part  3. 


2.  From  a  judgment  rendered  on  an  appeal  from  an  inferior 
Court,  within  ninety  days  after  the  entry  of  such  judgment. 

3.  From  an  order  granting  or  refusing  a  new  trial  ;  from  an 
order  granting  or  dissolving  an  injunction  ;  from  an  order  re- 
fusing to  grant  or  dissolve  an  injunction  ;  from  an  order  dissolv- 
ing or  refusing  to  dissolve  an  attachment ;  from  an  order  grant- 
ing or  refusing  to  grant  a  change  of  the  place  of  trial ;  from 
any  special  order  made  after  the  final  judgment,  and  from  an  in- 
terlocutory judgment  in  actions  for  partition  of  real  pn)perty^ 
within  sixty  days  aftel*  the  order  or  interlocutory  judgment  ib. 
made  and  entered  in  the  minutes  of  the  Court,  or  filed  with  the 
clerk. 

An  appeal  is  taken  by  filing  with  the  clerk  of  the  Court  in 
which  the  judgment  or  order  appealed  from  is  entered,  a  notice 
stating  the  appeal  from  the  same,  or  some  specific  part  thereof, 
and  serving  a  similar  notice  on  the  adverse  party  or  his  attorney. 
The  order  of  service  is  immateiial,  but  the  appeal  is  ineffectual 
for  any  purpose  unless  within  five  days  after  service  of  the 
notice  of  appeal,  an  undertaking  be  filed,  or  a  deposit  of  money 
be  made  with  the  clerk,  as  hereinafter  provided,  or  the  under- 
taking be  waived  by  the  adverse  party  in  writing. 

The  undertaking  on  appeal  must  be  in  writing,  and  must  be 
executed  on  the  part  of  the  appellant  by  at  least  two  sureties,  to 
the  effect  that  the  appellant  will  pay  all  damages  and  costs 
which  may  be  awarded  against  him  on  the  appeal,  or  on  a  dif- 
missal  thereof,  not  exceeding  three  hundred  dollars  ;  or  that 
sum  must  be  deposited  with  the  clerk  with  whom  the  judgment 
or  order  was  entered,  to  abide  the  event  of  the  appeal. 

If  the  appeal  be  from  a  judgment  or  order  directing  the  payment 
of  money,  it  does  not  stay  the  execution  of  the  judgment  or  or- 
der, unless  a  written  undertaking  be  executed  on  the  part  of  the 
appellant,  by  two  or  more  sureties,  to  the  effect  that  they  are 
bound  in  double  the  amount  named  in  the  judgment  or  order, 
that  if  the  judgment  or  order  appealed  from,  or  any  part  there- 
of, be  afl&rmedj  or  the  appeal  be  dismissed,  the  appellant  will 
pay  the  amount  directed  to  be  paid  by  the  judgment  or  order, 
or  the  part  of  such  amount  as  to  which  the  judgment  or  order  is 
affirmed,  if  affirmed  only  in  part,  and  all  damages  and  oostii 


rt3. 


Chap.  15.] 


CALIFORNIA. 


7i 


enor 

m  an 
Br  re- 
38olv- 
rrant- 
from 
an  in- 
perty» 
lent  ib- 
ith  the 

)urt  in 
,  notice 
hereof, 
torney. 
ffectual 
I  of  the 
I  money 
under- 

raust  be 
eties,  to 
id  costs 
>n  a  dit  - 
or  that 
[idgnient 

Ipayment 
Int  or  or- 
Irtof  the 
they  are 
)r  order, 
Lrt  there- 
llant  will 
|or  order, 
order  is 
md  costH. 


•which  may  be  awarded  against  the  appellant  upon  the  appeal ; 
and  that  if  the  appellant  does  not  make  such  payment  within 
thirty  days  after  the  filing  of  the  remittitur  from  the  Supreme 
Court,  in  the  Court  from  which  the  appeal  is  taken,  judgment 
may  be  entered  on  motion  of  the  respondent  in  his  favor  against 
the  sureties,  for  such  amouni,  together  with  the  interest  that 
may  be  due  thereon,  and  the  damages  and  costs  which  may  be 
awarded  against  the  appellant  upon  the  appeal.  If  the  judg- 
ment or  order  appealed  from  be  for  a  greater  amount  than  two 
thousand  dollars,  and  the  sureties  do  not  state  in  their  affidavits 
of  justification  accompanying  the  undertaking,  that  they  are 
each  worth  the  sum  specified  in  the  undertaking ;  the  stipulation 
may  be  that  the  judgment  to  be  entered  against  the  sureties 
shall  be  for  such  amounts  only  as  in  their  affidavits  they  may 
state  that  they  are  severally  worth,  and  judgment  may  be  en- 
tered against  the  sureties  by  the  Court  from  which  the  appeal  is 
taken,  pursuant  to  the  stipulations  therein  designated.  When 
the  judgment,  or  order,  appealed  from  is  made  payable  in  a 
specified  kind  of  money  or  currency,  the  judgment  entered 
against  the  sureties  upon  the  undertaking,  must  be  made  paya- 
ble in  the  same  kind  of  money  or  currency. 

When  an  appeal  is  perfected,  it  stays  all  further  proceedings 
in  the  Court  below,  upon  the  judgment  or  order  appealed  from, 
or  upon  the  matters  embraced  therein,  and  releases  from  levy 
property  which  has  been  levied  upon  under  execution  issued 
upon  such  judgment. 

The  adverse  party  may  except  to  the  sufficiency  of  the  sureties 
to  the  undertakings  on  appeal. 

The  foregoing  provisions  in  regard  to  appeals  do  not  apply  to 
appeals  to  the  County  Court,  from  Justices'  or  Police  Courts. 

Appeals  from  District  Courts. 

An  appeal  may  be  taken  to  the  Supreme  Court  from  the  Dis- 
trict Courts  in  the  following  cases  : 

1.  From  a  final  judgment  entered  in  an  action  or  special 
proceeding  commenced  in  those  Courts,  or  brought  into  those 
Courts  from  other  Courts. 

2.  From  an  order  granting  or  refusing  a  new  trial ;  from  an 


72 


CALIFORNIA. 


Parts. 


order  granting  or  dissolving  an  injunction  ;  from  an  order  refus- 
ing to  grant  or  dissolve  an  injunction  ;  from  an  order  dissolving 
or  refusing  to  dissolve,  an  attachment ;  from  an  order  changing 
or  refusing  to  change,  the  place  of  trial ;  from  any  special  order 
made  after  final  judgment,  and  from  such  interlocutory  judg- 
ment in  actions  for  partition  as  determines  the  rights  and  inter- 
ests of  the  respectictive  parties,  and  directs  partition  to  be 
made. 

Appeals  from  County  Couuts. 

Afi  appeal  may  be  taken  to  the  Supreme  Court  from  the. 
County  Courts  in  the  following  cases  : 

1.  From  a  final  judgment  in  an  action  of  forcible  entry  and 
detainer ;  in  an  action  to  prevent  or  abate  a  nuisance  ;  in  a  pro- 
ceeding in  insolvency ;  and  in  any  special  cases  and  proceed- 
ings ;  and  in  cases  which  involve  the  legality  of  any  tax,  impost, 
assessment,  toll,  or  municipal  fine,  or  in  which  the  demand,  ex- 
clusive of  interest,  or  the  value  of  the  property  in  controversy^ 
amounts  to  three  hundred  dollars. 

2.  From  an  order  granting  or  refusing  a  new  trial  in  the 
cases  herein  designated,  and  from  any  special  order  made  after 
final  judgment  in  such  cases. 

Appeals  from  Probate  Courts. 

An  appeal  may  be  taken  to  the  Supreme  Court  from  a  judg- 
ment or  orvTior  of  the  Probate  Court  as  follows  : 

1.  Granting,  or  refusing,  or  revoking  letters  testamentary,  or 
of  administration,  or  of  guardianship. 

2.  Admitting,  or  refusing  to  admit,  a  will  to  probate. 

3.  Against  or  in  favor  of  the  validity  of  a  will,  or  revoking^ 
the  probate  thereof. 

4.  Against  or  in  favor  of  setting  apart  property,  or  making, 
an  allowance  for  a  widow  or  child. 

5.  Against  or  in  favor  of  directing  the  partition  sale,  or  con- 
veyance of  real  property. 

6.  Settling  an  account  of  an  executor,  or  administrator,  or 
guardian. 


•niTvali 


mnHIH»IIIHIIIU(iliwi||itn 


Chap.  15.  J 


OALIFORNU. 


78 


7.  Refusing,  allowing,  or  directing  the  distribution  or  parti- 
tion of  an  estate,  or  any  part  thereof,  or  the  payment  of  a  debt, 
claim,  legacy,  or  distributive  share. 

8.  Granting  or  overruling  a  motion  for  a  new  trial. 

9.  Confirming  or  refusing  to  confirm  a  report  of  an  appraiser 
setting  apart  the  homestead. 

Appeals  from  Justiobs'  or  Police  Courts. 

Any  party  dissatisfied  with  a  judgment  rendered  in  a  civil  ac- 
tion in  a  Police  or  Justices'  Court  may  appeal  therefrom  to  the 
County  Court  of  the  county,  at  any  time  within  thirty  days  after 
the  rendition  of  the  judgment. 

Parties  appealing  on  questions  of  law  alone,  must  prepare  a 
statement  for  the  justice  or  judge.  When  the  appeal  is  taken 
on  questions  of  fact,  or  questions  of  both  law  and  fact,  no 
statement  need  be  made,  but  the  action  must  be  tried  anew  in 
the  County  Court. 

An  appeal  from  a  Justice's  or  Police  Court  is  not  effectual  for 
any  purpose,  unless  an  undertaking  be  filed,  with  two  or  more 
sureties,  in  the  sum  of  one  hundred  dollars,  for  the  payment  of 
the  costs  on  the  appeal ;  or  if  a  stay  of  the  proceedings  be  claimed, 
in  a  sum  equal  to  twice  the  amount  of  the  judgment,  including 
costs,    when  the  judgment  is   for  the  payment  of  money  ;    or 
twice  the  value  of  the  property,  including  costs,  when  the  judg- 
ment is  for  the  recovery  of  specific  personal  property  ;  and  must 
be  conditioned,  when  the  action   is  for  the  recovery  of  money, 
that  the  appellant  will  pay  the  amount  of  the  judgment  ap- 
pealed from,  and  all  costs,  if  the  appeal  be  withdrawn  or  dis- 
missed, or  the  amount  of  any  judgment  and  all  costs  that  may 
be  recovered  against  him  in  the  County  Court.     When  the  ac- 
tion is  foi  the  recovery  of  specific  personal  property,  the  iinder- 
taking   must  be   conditioned   that  the   appellant  will   pay  the 
judgment  and  costs  appealed  from,  and  obey  the  order  of  the 
Court  made  therein,  if  the  appeal  be   withdrawn  or  dismissed, 
or  any  judgment  and  costs  that  may  be  recovered  against  him  in 
said  action  in  the  County  Court,  and   will  obey  any  order  made 
by  the  Court  therein.     A  deposit  of  the   amount  of  the  judg- 
ment, including  all  costs,  appealed  from,  or  of  the  value  of  the 
property,   including  all  costs,  in  actions   for  the  recovery  of 


74 


OALIFOBNU. 


Part  8. 


specific  personal  property,  with  the  justice  or  judge,  is  equiva- 
lent to  the  filing  of  the  undertaking.  The  adverse  party  may 
except  to  the  sufficiency  of  the  sureties  within  five  days  after  the 
filing  of  the  undertaking,  and  unless  they  or  other  sureties  jus- 
tify before  the  justice  or  judge  before  whom  the  appeal  is  taken, 
within  five  days  thereafter,  upon  notice  to  the  adverse  party,  to 
the  amounts  stated  in  their  affidavits,  the  appeal  must  be  re- 
garded as  if  no  such  undertaking  had  been  given. 

On  filing  the  above  undertaking,  execution  must  be  stayed. 
For  a  failure  to  prosecute  an  appeal,  or  unnecessary  delay  in 
bringing  it  to  a  hearing,  the  County  Court,  after  notice,  may  or- 
der the  appeal  to  be  dismissed. 


CHAPTER  XVI. 


NEW  TRIALS. 

A  new  trial  may  be  granted  for  any  of  the  following  causes, 
materially  affecting  the  substantial  rights  of  the  party  aggrieved. 

1.  Irregularity  in  the  proceedings  of  the  Court,  jury,  or  ad- 
verse party,  or  any  order  of  the  Court,  or  abuse  of  discretion,  by 
which  either  party  was  prevented  from  having  a  fair  trial. 

2.  Misconduct  of  the  jury;  and  whenever  any  one  or  more  of 
the  jurors  have  been  induced  to  assent  to  any  general  or  8;iecial 
verdict,  or  to  finding  on  any  question  submitted  to  them  by  the 
Court,  by  a  resort  to  the  determination  of  chance,  such  mincon- 
duct  may  be  proved  by  the  affidavit  of  any  one  of  the  jurors. 

3.  Accident  or  surprise,  which  ordinary  prudence  could  not 
have  guarded  against. 

4.  Newly  discovered  evidence,  material  for  the  party  making 
the  application,  which  he  could  not,  with  reasonable  diligence, 
have  discovered  and  produced  at  the  trial. 


, 


v^v 


^^/: 


Chap.  16.] 


CALIFOBNU. 


75 


5.  Excessive  damages,  appearing  to  have  been  given  jinder 
the  influence  of  passion  or  prejudice.  '//;,, 

6.  Insufficiency  of  the  evidence  to  justify  the  verdict  or  otheiK;;y. 
decision,  or  that  it  is  against  law.  \ 

7.  Error  in  law  occurring  at  the  trial  and  excepted  to  by  the 
party  making  the  application. 

The  party  intending  to  move  for  a  new  trial  must,  within  ten 
days  after  the  verdict,  if  the  action  were  tried  by  a  jury,  or  after 
notice  of  the  decision  of  the  Court  or  referee,  if  the  action  were 
tried  without  a  jury,  file  with  the  Clerk  and  serve  upon  the  ad- 
verse party  a  notice  of  his  intention,  designating  the  ground 
upon  which  the  motion  will  be  made. 


CHAPTER  XVII. 


ESTATES  OF  DECEi^SED  PERSONS. 


je, 


Order  of  persons  entitled  to  administer : 

1.  The  surviving  husband  or  wife,  or  some  competent  person 
vrhom  he  or  she  may  request  to  have  appointed. 

2.  The  children. 

3.  The  father  or  mother. 

4.  The  brothers. 

5 .  The  sisters. 

6.  The  grandchildren. 

7.  The  next  of  kin  entitled  to  share  in  the  distribution  of  the 
estate. 

8.  The  Public  Administrator. 

9.  The  creditors. 

10.  Any  person  legally  competent. 

Administration  may  in  the  discretion  of  the  Court  be  granted 
to  one  or  more  competent  persons,  although  not  entitled  to  the 
same,  at  the  wiitten  request  of  the  person  entitled,  filed  in  the 
Court. 


I  III 


76 


CALIFORNU. 


[Part  3. 


No  person  is  competent  or  entitled  to  serve  as  administrator 
who  is — 

Ist.  Under  the  age  of  majority. 

2d.  Not  a  bona  fide  resident  of  the  State. 

3d.  Convicted  of  an  infamous  crime. 

4th.  Adjudged  by  the  Court  incompetent  to  execute  the  duties 
of  the  trust  by  reason  of  drunkenness,  improvidence,  or  want  of 
understanding  or  integrity. 

If  the  deceased  was  a  member  of  a  partnership  at  the  time  of 
his  decease,  the  surviving  partner  must  in  no  case  be  appointed 
administrator  of  his  estate. 

A  man'ied  woman  must  not  be  appointed  administratrix. 

Letters  of  administration  must  be  granted  to  any  apphcant, 
though  it  appears  that  there  are  other  persons  having  better  rights 
to  the  administration,  when  such  persons  fail  to  appear  and 
claim  the  issuing  of  letters  to  themselves. 

The  administrator  must  give  bonds,  with  two  or  more  sufficient 
sureties,  to  be  approved  by  the  probate  judge,  the  penalty  to 
be  not  less  than  twice  the  value  of  the  personal  property,  and 
twice  the  probable  value  of  the  annual  rents,  pro  Jits,  and  issues 
of  the  real  property;  additional  bonds  may  be  required,  when  a 
sale  of  real  estate  is  ordered. 

When  a  person  dies  leaving  a  widow  or  minor  children,  until 
letters  are  granted  and  the  inventory  is  returned,  they  are  en- 
titled to  remain  in  possession^of  the  homestead,  of  the  wearing 
apparel  of  the  family,  and  of  all  the  household  furniture  of  the 
decedent,  and  are  also  entitled  to  a  reasonable  provision  for  their 
support,  to  be  allowed  by  the  probate  judge. 

The  Court  or  probate  judge  may  set  apart  for  the  use  of  the 
surviving  husband  or  wife,  or  the  minor  children  of  the  deced- 
ent, all  property  exempt  from  execution,  including  tlie  home- 
stead selected,  designated  and  recorded.  If  no  homestead  has 
been  selected,  designated  and  recorded,  the  judge  or  the  Court 
must  select,  designate,  set  apart  and  cause  to  be  recorded,  a 
homestead  for  the  use  of  the  persons  before  named. 

If  the  amount  set  apart  be  insufficient  for  the  suppoi't  of  the 
widow  and  children,  or  either,  the  Probate  Court  or  judge  must 
make  such  reasonable  allowance  out  of  the  estate  as  shall  be 


. 


Chap.  17. 


CALIFORNIA. 


77 


necessary  for  the  maintenance  of  the  family,  according  to  their 
circuraHtancea,  during  the  progress  of  the  settlement  of  the 
estate;  which,  in  case  of  an  insolvent  estate,  must  not  be  Umger 
than  one  year  after  granting  of  letters. 

If  on  the  return  of  the  inventory  of  the  estate  of  an  intestate, 
it  appears  that  the  value  of  the  whole  estate  does  not  exceed  the 
sum  of  fifteen  hundred  dollars,  it  must  be  assigned  for  the  use 
of  the  widow  and  minor  child  or  children,  after  payment  of  the 
expenses  of  his  last  illness,  funeral  charges,  and  the  expenses  of 
the  administration. 

If  it  appear  that  the  value  of  the  whole  estate  does  not  exceed 
the  sum  of  three  thousand  dollars,  there  u  ly  be  a  summary  ad- 
ministration of  the  estate,  and  an  order  of  distrihntiou  at  the  end 
of  six  months  after  the  issuing  of  letters. 

Claims  against  the  estate  must  be  presented  to  the  executor  or 
administrator  within  the  time  specified  in  the  notice  to  creditors, 
requesting  them  to  present  their  claiiiis;  when  the  value  of  the 
estate  exceeds  ten  thousand  dollars,  the  time  expressed  in  the 
notice  must  be  ten  months:  when  it  does  not  exceed  ten  thou- 
sand dollars,  four  months.  If  a.  claim  be  not  presented  within 
the  time  limited  in  the  notice,  it  is  barred  forever;  except  where 
it  is  made  to  appear,  by  the  affidavit  of  the  claimant,  to  the  sat- 
isfaction of  the  executor  or  administrator;  and  the  probate  judge, 
that  the  claimant  had  no  notice,  by  reason  of  being  out  of  the 
State,  it  may  be  presented  at  any  time  before  a  decree  of  dis 
tribution  is  entered,  A  claim  for  a  deficiency  remaining  unpaid 
after  a  sale  of  property  of  the  estate,  mortgaged  or  pledged, 
must  be  presented  within  one  month  after  such  deficiency  is  as- 
certained. 

Every  claim  which  is  due  when  presented  to  the  administrator 
must  be  supported  by  the  affidavit  of  the  claimant,  or  some  one 
in  his  behalf,  that  the  amount  is  justly  due,  that  no  payments 
have  been  made  thereon  which  are  not  credited,  and  that  there  are 
no  offsets  to  the  same,  to  the  knowledge  of  the  claimant  or  affi- 
ant. If  the  claim  be  not  due  when  presented,  or  be  contingent^ 
the  particulars  of  such  claim  must  be  stated.  When  the  affi- 
davit is  made  by  a  person  other  than  the  claimant,  he  must  set 
forth  in  the  affidavit  the  reason  why  it  is  not  made  by  the  claim- 


78 


CALIFORNIA. 


[Part  3. 


«nt.  The  oath  may  be  taken  by  any  officer  authorized  to  admin- 
ister oaths.  The  executor  or  administrator  may  also  require 
satisfactory  vouchers  or  proofs  to  be  produced  in  support  of  the 
claim.  If  the  estate  be  insolvent,  no  greater  rate  of  interest 
shall  be  allowed  upon  any  claim,  after  the  first  publication  of 
notice  to  creditors,  than  seven  per  cent. 

When  a  claim,  accompanied  by  the  affidavit  required  as  afore- 
said, is  presented  to  the  executor  or  administrator,  he  must 
endorse  thereon  his  allowance  or  rejection,  with  the  day  and  date 
thereof.  If  he  allows  the  claim,  it  must  be  presented  to  the  pro- 
bate judge  for  his  appoval,  who  must  in  the  same  manner,  en- 
dorse upon  it  his  allowance  or  rejection.  If  the  executor,  or  ad- 
iuinistrator,  or  judge,  refuse  or  neglect  to  endorse  such  allc  ice 
or  rejection,  for  ten  days  after  the  claim  has  been  preseni 
him,  such  refusal  or  neglect  is  equivalent  to  a  rejection  on  the  ■*. 
day;  and  if  the  presentation  be  made  by  a  notary,  the  certificate 
of  such  notary,  under  seal,  is  prima  facie  evidence  of  such  pre- 
sentation and  rejection.  If  the  claim  be  presented  to  the  execu- 
tor or  administrator  before  the  expiration  of  the  time  limited  for 
the  presentation  of  claims,  the  same  is  presented  in  time, 
though  acted  upon  by  the  executor  or  administfiator,  and  by 
the  judge,  after  the  expiration  of  such  time.  If  the  claim  be 
payable  in  a  particular  kind  of  money  or  currency,  it  shall,  if  al- 
lowed, be  payable  only  in  such  money  or  currency. 

Every  claim  allowed  by  the  executor  or  administrator,  and  ap- 
proved by  the  probate  judge,  or  a  copy  thereof,  must,  within 
thirty  days  thereafter,  be  filed  in  the  Probate  C<<urt. 

If  the  claim  is  founded  on  a  bond,  bill,  note,  or  any  other  in- 
strument, a  copy  of  such  instrument  must  accompany  the  claim, 
and  the  original  instrument  must  be  exhibited  if  demanded,  un- 
less it  be  lost  or  destroyed;  in  which  case  the  claimant  must  ac- 
company his  claim  by  his  affidavit,  containing  a  copy  or  particu- 
lar description  of  such  instrument,  and  state  its  loss  or  destruc- 
tion. Book  accounts  should  be  made  out  in  detail,  and  attached 
to  the  affidavit  in  proof  of  claim.  If  the  claim,  or  any  part  there- 
of, is  secured  by  a  mortgage  or  other  lien  which  has  been  re- 
corded in  the  office  of  the  recorder  of  the  county  in  which  the 
land  affected  by  it  lies,  it  is  sufficient  to  describe  the  mortgage 


Chap.  17.1 


CALIFOBNU. 


79 


,ge 


or  lien,  and  refer  to  the  date,  volume,  and  pa«?e  of  its  record.  A 
judgment  for  the  recovery  of  money  must  be  presented  to  the  ex- 
eoutoi  or  administrator  like  any  other  claim.  A  rejected  claim 
must  be  sued  for  within  three  months  from  date  of  its  rejection, 
if  it  be  then  due,  or  within  two  months  after  it  becomes  due; 
otherwise  the  claim  is  forever  baiTed. 

Claims  barred  by  the  statute  of  limitation  must  not  be  allowed. 
No  holder  of  any  claim  against  an  estate  shall  mantaiu  any  ac- 
tion thereon,  unless  the  claim  is  first  presented  to  the  executor 
or  administrator. 

A  judgment  rendered  against  a  decedent  dying  after  verdict 
or  decision  on  an  issue  of  fact,  but  before  judgment  is  rendred 
thereon,  is  not  a  lien  on  the  real  property  of  the  decedent,  but  is 
payable  in  the  due  course  of  administration. 

A  judgment  rendered  against  an  executor  or  administrator, 
upon  any  claim  for  money  against  the  estate,  only  establishes 
the  claim  in  thesame  manner  as  if  it  had  been  duly  allowed,  and 
the  judgment  must  be  that  the  executor  or  administrator  pay  in 
due  course  of  administration  the  amount  ascertained  to  be  due. 
A  certified  copy  of  the  judgment  must  be  filed  in  the  Probate 
Court.  No  execution  must  issue  upon  such  judgment,  and  no 
lieu  is  created. 

Every  executor  or  administrator  must  render  a  full  account  and 
a  report  of  his  administration  at  the  expiration  of  one  year  from 
the  time  of  his  appointment. 

Upon  the  settlement  of  the  accounts  at  the  end  of  the  year,  as 
required,  the  Court  must  make  an  order  for  the  payment  of  the 
debts,  as  the  circumstances  of  the  estate  require. 

In  case  of  the  death  of  any  employer,  the  wages  of  each  miner, 
mechanic,  salesman,  clerk,  servant  and  laborer,  for  services  ren- 
dered within  the  sixty  days  next  preceding  the  death  of  the  em- 
ployer, not  exceeding  one  hundred  doilars,  rank  in  priority  next 
after  the  funeral  expenses,  expenses  of  the  las<^  sickness,  the 
chai'ges  and  expenses  of  administering  upon  the  estate,  and  the 
allowance  to  the  widow  and  infant  children,  and  must  be  paid  be- 
fore other  claims  against  the  estate  of  the  deceased  person. 

The  debts  of  the  estate  subject  to  the  foregoing  provision 

must  be  paid  in  the  following  order: 
1.  Funeral  expenses. 


80 


CALIFORNIA. 


[Part  3. 


2.  The  expenses  of  the  last  sickness. 

3.  Debts  having  preference  by  the  laws  of  the  United  States. 

4.  Judgments  rendered  against  the  decedent  in  his  lifetime, 
and  mortgages  in  the  order  of  their  date. 

5.  All  other  demands  against  the  estate. 

The  preference  in  the  case  of  a  mortgage  only  extends  to  the 
proceeds  of  the  property  moiigaged.  The  deficiency,  if  any,  must 
be  classed  with  the  other  demands  against  the  estate. 


CHAPTER    XVIII. 


DESCENTS. 

The  property,  both  real  and  j  ersonal,  of  one  who  dies  with- 
out disposing  of  it  by  will,  passes  to  the  heirs  of  the  intestate, 
subject  to  the  control  of  the  Probate  Court,  and  to  the  possesH- 
ion  of  any  administrator  appointed  by  that  Court  for  the  pur- 
poses of  administration. 

When  any  person  liaving  title  to  any  estate  no',  otherwise 
limited  by  marriage  contract  dies  without  disposing  of  the  es- 
tate Ijy  will,  the  rule  of  distribution  is  as  follows,  subject  to  the 
payment  of  his  debts  : 

1.  If  the  decedent  leave  a  surviving  husband  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal  shares 
to  the  surviving  husband,  or  wife  and  child,  or  issue  of  such 
child.  If  the  decedent  leave  a  surviving  husband  or  wife,  and 
more  than  one  cliild  living,  or  one  child  living  and  the  lawful  is- 
sue of  one  or  more  deceased  children,  one  tliird  to  the  surviving 
husband  or  wife,  and  the  remainder  in  equal  shares  to  his  chil- 
dren, and  to  the  lawful  issue  of  any  deceased  child,  by  right  of 
representation  ;  but  if  there  ])e  no  child  of  the  d(  3-dent  living 
at  his  death,  the  remainder  goes  to  all  of  his  lineal  .'••r.cendants  ; 


Chap.  18.] 


CALIFORNIA. 


81 


and  if  all  of  the  descendants  are  in  the  same  degree  of  kindred 
to  the  decedent,  they  Hhare  equally,  otherwise  they  take  accord- 
ing to  the  right  of  representation.  If  the  decedent  leave  no 
surviving  husband  or  wife,  >  rt  leave  issue,  the  whole  estate  goes 
to  such  issue ;  and  if  such  issue  consists  of  more  than  one 
child  living,  or  one  child  living,  and  tlie  lawful  issue  of  one  or 
more  deceased  children,  then  the  estate  goes  i  i  equal  shares  to 
the  children  living,  or  to  the  child  living,  hu»i  the  issue  of  the 
deceased  child  or  children  by  right  of  representiition. 

2.  If  the  decedent  leave  no  issue  the  estate  goes  in  equal 
shares  to  the  surviving  husband  or  wife,  and  to  the  decedent's 
father.  If  there  be  no  father,  then  one-half  goes  in  equal 
shares  to  the  brothers  and  sisters  of  the  decedent,  and  to  t  he 
children  of  any  deceased  brother  or  sister,  by  right  ot  represen- 
tation ;  if  he  leave  a  mother  also,  she  takes  an  equal  share  with 
the  brothers  and  sisters.  If  the  decedent  leave  no  issue,  nor 
husband  nor  wife,  the  estate  must  go  to  his  father. 

3.  If  there  be  no  issue,  nor  husband,  nor  wife,  nor  fatlier, 
then  in  equal  shares  to  the  brothers  and  sisters  of  thd  decedent, 
and  to  the  children  of  any  deceased  brother  or  sister,  by  right 
of  represent  ition  ;  if  a  mother  survive,  she  takes  an  equal  Hhare 
with  the  brothers  and  siste  l-s. 

4.  If  tlie  decedent  leave  no  issue,  nor  husband,  nor  wife, 
nor  father,  and  no  brother  nor  sister  is  living  at  the  time  of  his 
death,  the  estate  goes  to  his  mother,  to  the  exclusion  of  the  is- 
sue, if  any,  of  deceased  brothers  or  sisters. 

5.  If  the  decedent  leave  a  tiurviving  husband  or  wife,  and  no 
issue,  and  no  father,  nor  mother,  nor  brother,  nor  sister,  the 
whole  estate  goes  to  tlie  surviving  husband. 

6.  If  the  decedent  leave  no  issue,  nor  husband,  nor  wife, 
flnd  no  father,  nor  mother,  nor  brother,,  nor  sister,  the  estate 
must  go  to  the  next  of  kin,  in  e(jual  degree,  exce|jting  that 
when  there  are  two  or  more  collateral  kindred  in  ^^ciual  degree, 
but  claiming  through  different  ancestor  'li«>m-  who  claimed 
through  the  nearest  ancestors  .iiu^t  b<'  pn  .■  id  Uj  those  claim- 
ing through  an  ancestor  mor(>  remote  ;  however, 

7.  If  the  decedent  leave  several  childi'<'n,  */r  om-  child  and 
the  issue  of  one  or  more  children,  and  nny  ttwh  numbing  child 


82 


CALIFORNIA. 


[Part  3. 


dies  under  age,  and  not  having  been  married,  all  the  estate  that 
came  to  the  deceased  child  by  iaheritance  from  such  decedent 
descends  in  equal  shares  to  the  other  children  of  the  same  parent, 
and  to  the  issue  of  any  such  other  children  who  are  dead,  by 
right  of  representation. 

8.  If,  at  the  death  of  such  child,  who  dies  \inder  age,  not 
having  been  manied,  all  the  other  children  of  his  parents  are 
also  dead,  and  any  of  them  have  left  issue,  the  estate  that  came 
to  such  child,  by  inheritance  from  his  parent,  descends  to  the 
issue  of  all  other  (rhildren  of  the  same  parent ;  and  if  all  the  is- 
sue are  in  the  same  degree  of  kindred  to  the  child,  they  share 
the  estate  equally,  otherwise  they  take  according  to  the  right  of 
representation. 

*,).  If  the  decedent  leave  no  husband,  wife,  or  kindred,  the 
estate  escheats  to  the  State  for  the  support  of  common  schools. 

The  above  provisions,  as  to  the  inheritance  of  the  husband 
and  wife  from  each  other,  apply  only  to  the  separate  property  of 
the  decedents. 

Upon  the  deatli  of  the  wife,  the  entire  (iommanity  property, 
without  administration,  belongs  to  the  8«urviving  husl)an(l,  ex- 
cept such  portion  thereof  as  may  Iiave  been  set  apart  to  her  by 
judicial  decree,  for  her  support  and  maintenan<;e,  which  portion 
is  subject  to  her  testamentary  disposition,  and  in  the  absence  of 
such  disposition  goes  to  her  descendants  or  heirs,  exclusive  of 
her  husband. 

Upon  the  death  of  the  husband,  one-half  of  the  community 
property  goes  to  the  surviving  wife,  and  the  other  half  is  subject 
to  the  testamentary  disposition  of  tlio  husband,  and  in  the  ab- 
sence of  such  disposition  goes  to  his  descendants,  ecpially,  if 
such  descendants  are  in  the  same  degree  of  kindre<l  to  the  de- 
cedent ;  otherwise,  according  to  the  right  of  representation ; 
and  in  the  absence  of  both  such  dispositions,  and  such  descend- 
ants, is  subject  to  distribution  in  the  same  manner  as  the  sepa- 
rate proijerty  of  the  husband.  In  case  of  the  dissolution  of  the 
(community  by  the  death  of  the  husband,  the  entire  community 
property  is  mjually  subject  U)  his  debts,  the  family  allowance, 
And  the  charges  and  expenses  of  administration 

Every  illegitimate  child  is  an  heir  of  the  person  who,  iu  writ- 


(Chap.  18.] 


CALIFORNIA. 


Inity 

jfOt 
ab- 
if 
•  le- 

^on ; 

311(1- 

|ei)a- 

the 

kuity 

luce, 

kvrit- 


^ 


ing,  signed  in  the  presence  of  a  competent  witness,  acknowledges 
himself  to  he  the  father  of  such  child  ;  and  in  all  cases  is  an 
heir  of  his  mother  ;  and  inherits  his  or  her  estate,  in  whole  or  in 
part,  as  the  case  may  be,  in  the  same  manner  as  if  he  had  been 
born  in  lawful  wedlock  ;  but  he  does  not  represent  his  father  or 
mother  by  inheriting  an}'  part  of  the  estate  of  his  or  her  kin- 
dred, either  lineal  or  collateral,  unless,  before  his  death,  his 
parents  shall  have  inter-married,  and  his  father,  after  such 
marriage,  acknowledges  him  as  his  child,  or  adopts  him  into 
his  family  ;  in  which  case  such  dald  and  all  tlie  legitimate 
children  are  considered  brothers  rnd  sisters,  and  on  the  death 
of  either  of  them  intestate,  and  witlxout  issue,  tlie  others 
inlierit  his  estate,  and  are  heirs  as  hereinbefore  provided,  in  like 
manner  as  if  all  the  children  had  been  legitimate  ;  saving  to 
the  father  and  mother  respectively  their  rights  in  the  estates  of 
all  tlie  children  in  like  manner  as  if  all  had  been  legitimate. 
Tlie  issue  of  all  marriages  null  in  law,  or  dissolved  by  di^  orce, 
are  legitimate. 

If  an  illegitimate  child,  who  has  not  been  acknowledged  or 
adopted  by  his  father,  dies  intestate,  without  lawful  issue,  his 
estate  goes  to  his  mother,  or  in  case  of  her  decease,  to  her  heirs 
at  law. 


fl 

1 

l! 

I 

m  ' 

w 

il! 

'  1 

SA' 

'  i 

^wEt 

W ' 

4     ' 

i 

'1      . 

ni      i 

i^: 

84 


CALIFORNIA. 


[Part  3. 


CHAPTER    XIX. 


LIENS    OP    MECHANICS    AND    OTHERS    UPON    REAL 

PROPERTY. 

Every  person  performing  labor  upon,  or  furnishing  materials 
to  be  used  in  the  construction,  alteration,  or  repair  of  any  min- 
ing claim,  building,  wharf,  bridge,  ditch,  flume,  tunnel,  fence, 
machinery,  railroad,  wagon-read,  aqueduct  to  create  hydraulic 
power,  or  any  other  structure,  or  who  performs  labor  in  any 
mining  claim,  has  a  lien  upon  the  same  for  his  work  or  labor 
done  or  materials  furnished  by  each,  respectively,  whether  done 
or  furnished  at  the  instance  of  the  owner  of  the  building  or 
other  improvement,  or  his  agent ;  and  every  contractor,  sub- 
contractor, architect,  builder,  or  otlier  person  having  charge  of 
any  mining,  or  of  the  construction,  alteration,  or  repair,  either 
in  whole  or  in  part,  of  any  building  or  other  improvement,  us 
aforesaid,  shall  bo  held  to  be  the  agent  of  the  owner. 

The  land  upon  which  any  building,  improvement,  or  structure 
is  constructed,  together  with  a  convenient  space  about  the 
same,  or  so  much  as  may  be  required  for  the  convenient  use  and 
occupation  thereof,  to  be  determined  by  the  Court  on  rendering 
judgment,  is  also  subject  to  the  lien,  if,  at  the  commencement 
of  the  work,  or  of  the  furnishing  of  the  materials  for  tlie  same, 
the  land  belonged  to  the  person  who  caused  said  building,  im- 
provement, or  structure  to  be  constructed,  altered,  or  repaired  ; 
but  if  such  person  owned  less  than  a  fee  simple  estate  in  such 
land,  then  only  his  interest  therein  is  subject  to  such  lien. 

Im]  movements  arc  held  to  be  i^onshucted  at  the  instauct-  of 
tlie  ov  nor  of  the  lauds,  unless  he,  williin  tJiree  days  tdUn-  lie 
Uall  liave  received  knowledge  of  the  conHtrUi  *  )U,  alteration, 
or  repair,  or  inteaded  construction,  alterittioi:  .■  repair,  give 
notice  that  he  will  not  be  responsilde  for  tiK»  same,  by  pont- 
ing  a  notice  in  writing  on  the  premises  in  a  conspicuous  [)]a(e 
to  that  etfect. 


Chap.  19.1 


CALIFORNIA. 


85 


licut 
ime, 
iui- 
i-ca  ; 

|tioi>, 


Such  liens  are  preferred  to  any  lieu,  mortgage  or  other  incum- 
brance which  may  have  attached  subsequent  to  the  time  when 
the  building,  improvement  or  structure  was  commenced,  work 
done,  or  materials  were  commenced  to  be  furnished ;  also,  to 
any  lien,  mortgage  or  other  incumbrance,  of  which  the  lien- 
holdor  had  no  notice,  and  which  was  unrecorded  at  the  time  the 
building,  improvement  or  structure  was  commenced,  work  done, 
or  the  materials  were  commenced  to  be  furnished. 

Eveiy  original  contractor,  within  sixty  days  after  the  comple- 
tion of  hiw  contract,  and  every  person,  save  the  original  con- 
tractor, claiming  the  benefit  of  this  chapter,  must,  within  thirty 
days  after  the  completion  of  any  building,  improvement  or 
structure,  or  after  the  completion  of  the  alteration  or  repair 
thereof,  or  the  perforniauee  of  any  labor  in  ;i  mining  claim,  rile 
for  record  with  the  irounty  recorder  of  the  (iouut}'  in  which  such 
pro[)erty,  or  some  part  thereof,  is  situated,  a  claim  containing  a 
statement  of  his  demand,  after  deducting  all  just  credits  and 
offsets,  with  the  name  of  the  owner  or  reputed  owner,  if  known, 
and  also  the  name  of  the  person  by  whom  lie  was  employed,  or 
to  whom  he  furnished  the  materials,  with  a  statement  of  the 
terms,  time  given,  and  conditions  of  his  contract,  and  also  a  de- 
scription of  the  property  to  be  charged  witli  the  lien,  sufficieat 
for  identification,  which  claim  must  be  verified  hy  the  oath  i>! 
himself  or  of  some  otlier  person. 

The  lien  does  not  bind  any  building,  mining  claim,  improve- 
ment or  structure,  for  a  longer  period  than  ninety  davH  after  tlie 
same  has  been  riled,  uuIchh  proceedings  bo  commenceil  in  a  proper 
Court  within  that  time  to  enforce  tlie  same ;  or  if  a  credit  be 
given,  then  ninety  days  after  the  expiration  of  such  credit ;  but 
no  lien  ctuitinues  in  force  for  a  longer  time  than  two  years  from 
the  time  the  work  is  coni\deted,  by  any  agreement  to  give  credit. 

In  evi>vy  cas(>  in  w  hich  ditlerent  Y\v\\»  are  asserted  against  any 
pro|>erty,  the  ('(»urt  in  the  judgnuMit  must  ileciare  the  rank  at" 
ea*  li  lien  or  class  of  liens,  which  shall  be  in  the  following  order, 
vi/.  :  First,  All  persons  other  than  the  original  coutrnclors  and 
sub-contractors.  Second,  The  sub-contractors,  Third,  The 
original  contractors.  And  the  proceeds  of  the  sale  of  the  prop- 
erty Miust  be  applied  to  each  lien  or  class  of  liens  in  the  order  of 


mamm 


86 


CALIFORNIA. 


[Part,  3. 


m 


I 


its  rank ;  and  whenever,  on  the  sale  of  the  property  subject  to 
the  lien,  there  is  a  deficiency  of  proceeds,  judgment  may  be 
docketed  for  the  deficiency. 

Any  number  of  persons  claiming  liens  may  join  in  the  same 
action,  and  when  separate  actions  are  commenced,  the  Court 
may  consolidate  them.  The  Court  may  also  allow  as  part  of 
the  costs,  the  moneys  paid  for  filing  and  recording  the  lien,  and 
reasonable  attorney's  fees  in  the  District  and  Supreme  Courts. 
Whenever  materials  shall  have  been  furnished  for  use  in  the 
construction,  alteration,  oi'  re})air  of  any  building  or  other  im- 
provement, such  materials  shall  not  be  subject  to  attachment, 
execution,  or  other-  legal  process,  to  enforce  any  debt  due  by 
the  purchaser  of  such  materials,  except  a  debt  due  for  the  pur- 
chase money  thereof,  so  long  as  in  good  faith  tlie  same  are  about 
to  be  applied  to  the  construction,  alteration,  or  repair  of  such 
building,  mining  claim,  or  other  improvement. 

In  a  judgment  enforcing  a  mechanic's  lien,  a  personal  judg- 
ment cannot  be  rendered  against  those  defendants  against  whom 
no  personal  claim  is  established. 


CHAPTER  XX. 

LIENS  FOR  SALARIES  AND  WAGES  AND  OTHER  LIENS. 

In  all  assignments  of  property,  made  by  any  person  to  trustees 
or  assignees,  on  account  of  the  inability  of  the  person,  at  the 
time  of  the  assignment,  to  pay  his  debts,  or  in  proceedings  in 
insolvency,  the  wages  of  the  miners,  mechanics,  salesmen,  ser- 
vants, ( lerks  or  laborers  employed  by  such  person,  to  the  amount 
of  one  hundred  dollars  each,  and  for  services  rendered  within 
sixty  days  previously,  arc  preferred  claims,  and  must  be  paid  by 
such  trustees  or  assignees  before  any  other  creditor  or  creditors 
of  the  assignor. 


MMMl 


Chap.  20.1 


CALIFORNIA. 


87 


ENS. 


In  case  of  the  death  of  any  employer,  the  wages  of  each  miner, 
mechanic,  salesman,  clerk,  servant  and  laborer,  for  services  ren- 
dered within  the  sixty  days  next  precaeding  the  death  of  the 
employer,  not  exceeding  one  hundred  dollars,  rank  in  priority 
next  after  the  funeral  expenses,  expenses  of  the  last  sickness, 
the  charges  and  expenses  of  administering  upon  the  estate,  and 
the  allowance  to  the  widow  and  infant  children,  anchnust  he  paid 
before  other  claims  against  the  estate  of  the  deceased  person. 

In  cases  of  execution,  attachments,  and  writs  of  a  similar  na- 
ture, issued  against  any  person,  except  for  claims  for  labor  done, 
any  miners,  mechanics,  salesmen,  servants,  clerks  and  laborers, 
who  have  claims  against  the  defendant  for  labor  done,  may  give 
notice  of  their  claims  and  the  amount  thereof,  sworn  to  by  the 
person  making  the  claim,  to' the  creditor  and  the  officer  execut- 
ing either  of  such  writs,  at  any  time  before  the  actual  sale  of  the 
projierty  levied  upon;  and  unless  such  claim  is  disjjuted  by  the 
debtor  or  a  creditor,  such  officer  must  pay  to  such  person,  out  of 
the  proceeds  of  the  sale,  the  amount  each  is  entitled  to  receive 
for  such  services  rendered  within  the  sixty  days  next  ])reccding 
the  levy  of  the  writ,  not  exceeding  one  hundred  dollars.  If  any 
or  all  of  the  claims  so  presented,  and  claiming  preference,  are 
disputed  by  either  the  debtor  or  a  creditor,  the  person  presenting 
the  same  must  commence  an  action  within  ten  days  for  the  re- 
coveiy  thereof,  and  must  prosecute  his  jiction  with  due  diligence, 
or  be  forever  barred  from  any  claim  of  pri(jrity  of  j)ayment 
thereof;  and  the  officer  shall  retain  possession  of  so  much  of  the 
proceeds  of  the  sale  as  may  be  necessary  to  satisfy  such  claim, 
until  the  determination  of  suclv  action;  and  in  case  judgment  be 
hud  fcr  the  claim,  or  anj'  part  thereof,  carrying  costs,  the  costs 
taxal)le  therein  shall  likewise  be  a  preferred  claim,  with  the 
sanje  rank  as  the  oriufinal  claim. 


igs  in 
ser- 
uouut 
ithin 
aid  by 
editors 


Other  Liens. 

One  who  sells  pei-sonal  ])ropeity,  has  a  special  lien  thereon, 
dei)onclent  on  possession,  for  its  price,  if  in  his  posession,  when 
the  price  becomes  payable. 

Every  person  who,  while  lawfully  in  possession  of  an  arti- 
cle  of  personal    projierty,    renders   any  8en'i''e   to   the  owner 


88 


CALIFORNIA. 


[Part  3. 


thereof  by  labor  or  skill  employed  for  the  iirotection,  improve- 
ment safekeeping,  or  carriage  thereof,  has  a  special  lien  there- 
on, dependent  on  possession  for  the  compensation,  if  any, 
which  is  due  to  him  from  the  owner  for  such  service;  and  livery 
or  boarding  or  feed-stable  proijrietors,  and  persons  pasturing 
horses  and  stock,  have  liens  dependent  on  posession  for  their 
compensation  in  caring  for,  boarding,  or  pasturing  such  horses 
or  stock. 

Any  person  who  makes,  alters,  or  repairs  any  article  of  per- 
sonal property,  at  the  request  of  the  owner  or  legal  possessor 
of  the  property,  has  a  lien  on  the  same  for  his  reasonable 
charges  for  work  done  and  materials  furnished,  and  may  retain 
possession  of  the  same  until  the  charges  are  paid. 

A  factor  has  a  general  lien,  dependent  on  possession,  for  all 
that  is  due  to  him  as  such,  upon  all  articles  at  commercial  value 
that  are  intrusted  to  him  by  the  same  principal. 

A  banker  has  a  general  lien,  dependent  on  possession,  upon 
all  propei*ty  in  his  hands  belonging  to  a  customer,  for  the  bal- 
ance due  to  him  from  such  customer  in  the  course  of  the  busi- 
ness. 

Hotel  men,  boarding-house  and  lodging-house  keepers,  have 
a  lien  on  baggage  and  other  property  of  their  guests,  depend- 
ent on  possession,  for  board,  lodging,  and  room  rent. 


CHAPTER  XXI. 


ARBITKATIONS. 


Persons  capable  of  contracting  may  submit  to  arbitration  any 
controversy  which  might  be  the  subject  of  a  civil  action  l)e- 
tween  them,  except  a  question  of  title  to  real  property  in  fee  or 
for  life. 

The  submission  to  arbitration  must  be  in  writing,  and  may  Ije 
made  to  one  or  more  persons. 


Chap.  22.  J 


CALIFORNIA. 


CHAPTER  XXII. 


HOMESTEADS. 


any 
be- 


The  homestead  consists  of  the  dwelling-house  in  which  the 
claimant  resides,  and  the  land  on  which  the  same  is  situated, 
selected  as  hereinafter  provided.  It  may  be  used  as  a  place  of 
business,  but  actual  residence  is  essential. 

Homesteads  may  be  selected  and  claimed : 

1.  Not  exceeding  five  thousand  dollars  in  value,  by  any  head 
of  a  family. 

•  2.  Not  e.\ceeding  one  thousand  dollars  in  value  by  any  other 
person. 

The  phrase  "  head  of  a  family,"  includes  within  its  meaning: 

1.  The  husband,  when  the  claimant  is  a  married  person. 

2.  Every  peVson  who  has  residing  on  the  premises  with  him 
or  her,  and  under  his  or  her  care  and  maintenance,  either: 

(1.)  His  or  her  minor  child,  or  the  minor  child  of  his  or  her 
deceased  wife  or  husband. 

(2.)  A  minor  brother  or  sister,  or  the  minor  child  of  a  de- 
ceased brother  or  sister. 

(3.)  A  father,  mother,  grandfather,  or  gi'andmother. 

(4.)  The  father,  mother,  grandfather,  or  grandmother  of  a  de- 
ceased husband  or  wife. 

(5.)  An  unmarried  sister,  or  any  other  of  the  relatives  men- 
tioned who  have  attained  the  age  of  majority,  and  are  unable  to 
support  themselves. 

The  declaration  of  homestead  must  be  executed,  acknow- 
ledged, and  duly  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  land  is  situated.  From  and  after  the  time 
the  declaration  is  filed  for  record,  the  premises  therein  described 
constitute  a  homestead. 

The  homestead  is  exempt  from  execution  or  forced  sale,  ex- 
eept  in  satisfaction  of  judgments  obtained : 


M 


IK) 


CALIFORNIA. 


[Part  3. 


1.  Before  the  declaration  of  bomeBtead  was  filed  for  record, 
and  which  constitute  liens  upon  the  premises. 

2.  On  debts  secured  by  mechanics',  laborers'  or  vendors' 
liens  upon  the  premises. 

3.  On  debts  secured  by  mortgages  upon  the  premises,  exe- 
cuted and  acknowledged  by  the  husband  and  wife,  or  an  un- 
married claimant. 

4.  On  debts  secured  by  mortgages  upon  the  premises,  exe- 
cuted nnd  recorded  before  the  declaration  of  homestead  was 
filed  for  record. 

The  homestead  of  a  manned  person  cannot  be  conveyed  or 
incumbered,  unless  the  instrument  is  executed  and  acknow- 
ledged by  both  husband  and  wife. 

If  the  homestead  exceed  in  value  the  amount  of  the  hojuc- 
stead  exemption,  the  excess  may  be  reaehed  on  execution,  but 
the  property  must  first  be  appraised,  upon  application  to  the 
county  judge. 

The  homestead  may  be  abanioned  by  filing  in  the  oflice  where 
the  declaration  is  filed  a  declaration  of  abandonment,  duly  ex- 
ecuted. 


CHAPTER  XXIII. 

CORPORATIONS.  '  ■■ 

Corjiorations  are  either  public  or  private.  Public  corjiora- 
tions  are  formed  or  organized  for  the  government  of  a  portion 
of  the  State;  all  other  corjiorations  are  private. 

Private  corporations  may  be  formed  by  the  voluntary  asso- 
ciation of  any  five  or  more  persons.  A  majority  of  such  per- 
sons must  be  residents  of  this  State.  They  may  be  formed  for 
any  purpose  for  which  individuals  may  lawfully  associate  them- 
selves. •  •      '  ^:  J    .,  5  ..C 

The  owners  of  sliares  in  a  corporation  whicli  has  a  capital 
stock  are  called  stockholders.  If  a  corporation  has  no  capital 
stock,  the  corporatoi's  and  their  successors  are  called  members. 


Chap.  23. J 


OAUFOBNU. 


91 


rii- 

(>U 


or 

itnl 
ital 


Each  stockholder  of  a  corj)oration  is  individually  and  pt^rsonally 
liable  for  such  portions  of  its  debts  and  liabilities  as  the  amount 
of  stock  or  shares  owned  by  him  boars  to  the  whole  of  the  sub- 
scribed capital  stock  or  shares  of  the  corporation,  and  for  a  like 
proportion  only  of  each  debt  or  claim  against  the  corporation. 
Any  creditor  of  the  corporation  may  institute  joint  or  seveml 
actions  against  any  of  its  stockholders,  for  the  ])ropoi*tion  of  his 
claim  payable  by  each,  and  in  such  action  the  Court  must  ascer- 
tain the  proportion  of  the  claim  or  debt  for  which  each  defen- 
dant is  liable,  and  a  several  judgment  must  be  rendered  against 
each,  in  conformity  therewith.  If  any  stockholder  pays  his 
proportion  of  any  debt  due  from  the  corporation,  incmrred 
while  he  was  s^ch  stockholder,  lie  is  relieved  from  any  further 
j^ersoual  liability  for  such  debt,  and  if  an  action  has  been 
brought  against  him  ui)on  such  debt,  it  shall  be  dismissed,  as  to 
him,  upon  his  paying  the  costs,  or  such  proportion  thereof  as 
may  be  properly  chargeable  against  him.  The  liability  of  each 
stockholder  is  determined  by  the  amount  of  stock  or  shares 
owned  by  him  at  the  time  the  debt  or  liability  was  incurred; 
and  such  liability  is  not  released  by  any  subso(iueut  transfer  of 
stock.  The  term  stockholder,  as  used  in  this  section,  shall  ap- 
ply not  only  to  such  persons  as  appear  by  the  books  of  the  cor- 
poration to  be  such,  but  also  to  cverj'  equital)le  owner  of  stock, 
although  the  same  appear  on  the  books  in  the  name  of  another, 
and  also,  to  every  person  who  has  advanced  the  installments  or 
purchase-money  of  stock  in  the  name  of  a  minor,  so  long  as  the 
latter  remains  a  minor,  and  also,  to  every  guardian,  or  other 
trustee,  who  voluntarily  invests  any  trust  funds  in  the  stock. 
Trust  funds  in  the  hands  of  a  guardian,  or  trustee,  shall  not  be 
liable  under  the  provisions  of  this  section,  by  reason  of  any 
such  iiivestment,  nor  shall  the  person  for  whose  benefit  the  in- 
vestment is  made  be  responsible  in  respect  to  the  stock  until  he 
becomes  competent  and  able  to  control  the  same,  but  the  re- 
sponsibility of  the  guardian  or  trustee  making  the  investment 
shall  continue  until  that  i)eriod.  Stock  held  as  collateral  secu- 
rity, or  by  a  trustee,  or  in  any  other  representative  capacity, 
does  not  make  the  holder  thereof  a  stockholder  within  the 
meaning  of  this  section,  except  in  the  cases  above  mentioned, 
so  as  to  charge  him  with  any  proportioii  of  the  debts  or  liabili- 


% 


IMAGE  EVALUATION 
TEST  TARGET  (MTO) 


1.0 


I.I 


■^  1^    1112.2 

1^  m  III  2.0 


1.8 


1.25      1.4      1.6 

=     ==    —  . 

^ 6"     

► 

V 


V 


Photographic 

Sciences 

Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  873-4503 


\ 


^^ 


<^ 


SJ 


\\ 


k  ». 


^ 


O 


•V 


^ 


4rj 


\ 


^ 


O^ 


< 


92 


CALIFORNIA. 


[Part  3. 


ties  of  the  corporation  ;  but  the  pledgor,  or  person,  or  estate 
represented,  is  to  be  deemed  the  stockholder,  as  respects  such 
liability.  In  corporations  having  no  capital  stock,  each  mem- 
der  is  individually  and  personally  liable  for  his  proportion  of  its 
debts  and  liabilities,  and  similar  actions  may  be  brought  against 
him,  either  alone  or  jointly  with  other  members,  to  enfarce  such 
liability,  as  by  this  section  may  be  brought  against  one  or  more 
stockholdei's,  and  similar  judgments  may  be  rendered.  The 
liability  of  each  stockholder  of  a  corporation  formed  under  the 
laws  of  any  other  State  or  Territory  of  the  United  States,  or  of 
any  foreign  country,  and  doing  business  within  this  State,  shall 
be  the  same  as  the  liability  of  a  stockholder  of  a  corporation 
created  under  the  constitution  and  laws  of  this  State. 


CHAPTER  XXIV. 

MODE  OF  TAKING  TESTIMONY  OF  WITNESSES. 

The  testimony  of  witnesses  is  taken  in  three  modes,  viz  : 

1.  By  affidavit. 

2.  By  deposition. 

3.  By  oral  examination. 

An  affidavit  is  a  written  declaration,  under  oath,  made  with- 
out notice  to  the  adverse  party. 

A  deposition  is  a  written  declaration,  under  oath,  made  upon 
notice  to  the  adverse  party,  for  the  purpose  of  enabling  hi'n  to 
attend  and  cross-examine. 

An  oral  examination  is  an  examination  in  presence  of  the  jury 
or  tribunal  which  is  to  decide  the  fact,  or  act  upon  it ;  the  testi- 
mony being  heard  by  the  jury  or  tribunal  from  the  lips  of  the 
witness. 

Depositions  must  be  taken  in  the  form  of  question  and  answer, 
and  the  words  of  the  witness  must  be  written  down,  unless  the 
parties  agree  to  a  diflferent  mode. 


KM 


m* 


Chap.  24.  J 


OALIFOBNIA. 


93 


e 


•> 


Affidavits  are  used  to  verify  pleadings,  or  to  prove  service  of 
papers,  and  sach  like. 

Testimony  of  witnesses  out  of  this  State  may  be  taken  by  de- 
position, at  any  time  after  service  of  summons,  or  the  appear- 
ance of  the  defendant. 

Testimony  of  witnesses  in  this  State  may  be  taken  by  deposi- 
tion, in  any  action,  at  any  time  after  the  service  of  the  summons, 
or  the  appearance  of  the  defendant,  in  the  following  cases  : 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding, 
or  an  officer,  or  member  of  a  corporation  which  is  a  party  to  the 
action  or  proceeding,  or  a  person  for  whose  immediate  benefit 
the  action  or  proceeding  is  prosecuted  or  defended, 

2.  When  the  witness  resides  out  of  the  county  in  which  the 
testimonv  is  to  be  used. 

3.  When  a  witness  is  about  to  leave  the  county  where  the  ac- 
tion is  to  be  tried,  and  will  probably  continue  absent  when  the 
testimony  is  required. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial,  is 
nevertheless  too  infirm  to  attend. 

5.  When  the  testimony  is  required  upon  a  motion,  or  ia  any 
other  case  where  the  oral  examination  of  the  witness  is  not  re- 
quired. 

6.  When  the  witness  is  the  only  one  who  can  establish  facts, 
or  a  fact  material  to  the  issue — provided,  that  the  deposition  of 
such  witness  shall  not  be  used  if  his  presence  can  be  procured 
at  the  time  of  the  trial  of  the  cause. 

The  deposition  of  a  witness  out  of  this  State  may  be  taken 
upon  commission  issued  from  the  Court,  under  the  seal  of  the 
Court,  upon  an  order  of  the  judge  or  Court,  or  county  judge,  on 
the  application  of  either  party,  upon  five  days  previous  notice  to 
the  other.  If  issued  to  any  place  within  the  United  States,  it 
may  be  directed  to  a  person  agreed  upon  by  the  parties ;  or  if 
they  do  not  agree,  to  any  judge  or  justice  of  the  peace,  or  com- 
missioner, selected  by  the  officer  issuing  it.  If  issued  to  any 
country  out  of  the  United  States,  it  may  be  directed  to  a  minis- 
ter, embassador,  consul,  vice-consul,  or  consular  agent  of  the 
United  States,  in  such  country,  r  to  any  person  agreed  upon  by 
the  parties. 


94 


CALIFORNIA.. 


[Part  3. 


The  deposition  of  a  witness  in  this  State  may  be  taken  by  either 
party  before  a  judge  or  officer  authorized  to  administer  oaths,  on 
serving  upon  the  adverse  party  previous  notice  of  the  time  and 
place  of  examination,  together  with  a  copy  of  an  affidavit,  show- 
ing that  it  is  a  case  wherein  deposition  may  be  used.  Such  no- 
tice must  be  at  least  five  days,  adding  also  one  day  for  everj- 
twenty-five  miles  of  the  distance  of  the  place  of  examination 
from  the  residence  of  the  person  to  whom  the  notice  is  given, 
unless,  for  a  cause  shown,  a  judge,  by  order,  prescribe  a  shorter 
time.  When  a  shorter  time  is  prescribed,  a  copy  of  the  order 
must  be  served  with  the  notice. 


CHAPTER  XXV. 


JUDICIAL  RECORDS,  HOW  PROVED. 


A  judicial  record  is  the  record  or  official  entry  of  the  preceed- 
ings  in  a  Court  of  justice,  or  of  the  official  act  of  a  judicial  offi- 
cer, in  an  action  or  special  proceeding. 

A  judicial  record  of  this  State,  or  of  the  United  States,  may 
be  proved  by  the  production  of  the  original,  or  of  a  copy  there- 
of certified  by  the  clerk  or  other  person  having  the  legal  custody 
thereof.  That  of  a  sister  State  may  be  proved  by  the  attestation 
of  the  clerk  and  the  seal  of  the  Court  annexed,  if  there  be  a 
clerk  and  seal,  together  with  a  certificate  of  the  chief  judge  or 
presiding  magistrat'  ,  that  the  attestatioi  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by  the 
attestation  of  the  clerk,  vsdth  the  seal  of  the  Court  annexed,  if 
there  be  a  clerk  and  seal,  or  of  the  legal  keeper  of  the  record, 
with  the  seal  of  his  office  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  chief  judge  or  presiding  magistrate,  that 
the  person  makmg  the  attestation  is  the  clerk  of  the  Court  or 
the  legal  keeper  of  the  record ;  and  in  either  case,  that  the  sig- 
nature of  such  person  is  genuine,  and  that  the  attestation  is  in 


Chap.  25.] 


CALIFORNIA. 


95 


due  form.  The  signature  of  the  chief  judge  or  presiding  mag- 
istrate must  be  authenticated  by  the  certificate  of  the  minister 
or  embassador,  or  a  consul,  vice-coii'^''l,  or  consular  agent  of  the 
United  States  in  such  foreign  country. 

A  copy  of  the  judicial  record  of  a  foreign  country  is  also  ad- 
missible in  evidence,  upon  proof  : 

1.  That  the  copy  oflfered  has  been  compared  by  the  witness 
with  the  original,  and  is  an  exact  transcrii)t  of  the  whole  of  it ; 

2.  That  such  original  was  in  the  custody  of  the  clerk  of  the 
Court  or  other  legal  keeper  of  the  same  ;  and, 

3.  That  the  copy  is  duly  attested  by  a  seal  which  is  proved  to 
be  the  seal  of  the  Court  where  the  record  remains,  if  it  be  the 
record  of  a  Court ;  or  if  there  be  no  such  seal,  or  if  it  be  not  a 
record  of  a  Court,  by  the  signature  of  the  legal  keeper  of  the 
original. 

CHAPTER  XXVI. 


ACKNOWLEDGMENTS. 


The  proof  or  acknowledgment  of  an  instrument  may  be  made 
at  any  place  within  this  State,  before  a  justice  or  clerk  of  the 
Supreme  Court. 

The  proof  or  acknowledgment  of  an  instrument  may  be  made 
iii  this  State  within  the  city,  county  or  district  for  which  the 
officer  was  elected  or  appointed,  before  either  : 

1.  A  judge  or  Clerk  of  a  Court  of  record ;  or, 

2.  A  mayor  or  recorder  of  a  city  ;  or, 

3.  A  court  commissioner  ;  or, 

4.  A  county  recorder  ;  or, 

5.  A  notary  public  ;  or, 

6    A  justice  of  the  peace. 

The  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  this  State,  but  within  the  United  States,  and  within  the 
jurisdiction  of  the  officer,  before  either  : 

1.  A  justice,  judge,  or  clerk  of  any  Court  of  record  of  the 
United  States ;  or, 


96 


CALIFORNIA. 


[Part  3. 


2.  A  justice,  judge,  or  clerk  of  any  Court  of  record  of  any 
State;  or, 

3.  A  commissioner  appointed  by  the  Governor  of  this  State  for 
that  purpose ;  or, 

4.  A  notary  public  ;  or, 

5.  Any  other  officer  of  the  State  where  the  acknowledgment 
is  made,  authorized  by  its  laws  to  take  such  proof  or  acknowl- 
edgment. 

A  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  the  United  States,  before  either  : 

A  minister,  commissioner,  or  charge  d'affaires  of  the  United 
States,  resident  and  accredited  in  the  country  where  the  proof  or 
acknowledgment  is  made  ;  or, 

2.  A  consul,  vice-consul,  or  consular  agent  of  the  United  States, 
resident  in  the  country  where  the  proof  or  acknowledgment  is 
made  ;  or, 

3.  A  judge  of  a  Court  of  record  of  the  county  where  the 
proof  or  acknowledgment  18  made;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the  gover- 
nor of  the  State,  pursuant  to  special  statutes;  or, 

5.  A  notary  public. 

If  any  of  the  above  named  officers  are  authorized  by  law  to 
appoint  a  deputy,  the  acknowledgment  or  proof  may  be  taken 
by  such  deputy  in  the  name  of  his  principal. 

The  acknowledgment  of  an  instrument  must  not  be  taken, 
unless  the  officer  taking  it  knows,  ui  has  satisfactory  evidence, 
on  the  oath  or  affirmation  of  a  credible  witness,  that  the  person 
making  such  acknowledgment  is  the  individual  who  is  described 
in  and  who  executed  the  instrument;  or  if  executed  by  a  corpo- 
ration, that  the  person  making  such  acknowledgment  is  the 
president  ox  secretaiy  of  such  corporation. 

The  acknowledgment  of  a  married  woman  to  an  instrument 
purporting  to  le  executed  by  her  must  not  be  taken,  unless  she 
:s  made  acquainted  by  the  officer  with  the  contents  of  the  in- 
strument on  an  examination  without  the  hearing  of  her  hus- 
band; nor  certified,  unless  she  thereupon  acknowledges  to  the 
officer  that  she  executed  the  instrument,  and  that  she  does  not 
wish  to  retract  such  execution. 


€hap.  26. 


CALIFORNIA. 


97 


General  Form  of  Certificate. 


State  or 


County  of 

On  this day  of- 


} 


ss. 


— ,  in  the  year ,  before  me,  [here 

insert  the  name  and  quality  of  the  officer]  personally  appeared 

,  known  to  me  [or  proved  to  me  on  the  oath  of J  to 

be  the  person  whose  name  is  subscribed  to  the  within  instru- 
ment, and  acknowledged  to  me  that  he  [or  they]  executed  the 
same. 


Form  of  Certificate  of  Acknowledgment  by  Married 

Woman. 


State  of— 


County  of 
On   this- 


} 


ss. 


day  of- 


in   the  year ,  before  me,  [here 


insert  the  name   and  quality  of  the  officer]  personally  appeared 

,  known  to  me  [or  proved  to  me  on  the  oath  of ]  to 

be  the  person  whose  name  is  subscribed  to  the  within  instru- 
ment, described  as  a  mamed  woman;  and  upon  an  examination 
without  the  hearing  of  her  husband,  I  made  her  acquainted 
with  the  contents  of  the  instrament;  and  thereupon  she  ac- 
knowledged to  me  that  she  executed  the  same,  and  that  she 
does  not  wish  to  retract  such  execution. 


le 
It 


Form  of  Certificate  of  Acknowledgment  by  a  Corporation. 


State  of- 


CouNTY  of 
On    this- 


} 


ss. 


day  of- 


— ,  in  the  year ,  before   me  [here 

insert  the  name  and  quality  of  the  officer]   personally  apjieared 

,  known  to  me  [or  proved  to  me  on  the  oath  of ]  to 

be  the  president  [or  the  secretary]  of  the  coi'poration  that  exe- 
cuted the  written  instrument,  and  acknowledged  to  me  that 
such  corporation  executed  the  same. 


98 


OALIFOKNIA. 


[Part  3. 


Form  of  Certificate  of  Acknowledgment  by  A.ttorney  in 

Fact. 


State  of- 


County  of 

On   this day  of- 


} 


88. 


-,  in  the  year- 


befor 


e   me 


[here 
insert  the  name  and  quality  of  the  officer]  personally  appeared 

,  known  to  me  [or  proved  to  me  on  the  oath  of ]  to 

be  the  person  whose  name  is  subscribed  to  the  within  instru- 
ment as  the  attorney  in  fact  of ,  and  acknowledged  to  me 

that  he  subscribed  the  name  of ,  thereto,  as  principal,  and 

his  own  name  as  attorney  in  fact. 

•  Officers  must  authenticate  their  certificates  by  affixing  thereto 
their  signatures,  followed  by  the  names  of  their  offices;  also  their 
seals  of  office,  if  by  the  laws  of  the  State  or  countrj'  where  the 
acknowledgment  or  proof  is  taken,  or  by  authority  of  which 
they  are  acting,  they  are  required  to  have  official  seals. 

The  certificate  of  proof  or  acknowledgment,  if  made  before 
a  justice  of  the  peace,  when  used  in  any  county  other  than  that 
in  which  he  resides,  must  be  accompanied  by  a  certificate  under 
the  hand  and  seal  of  the  clerk  of  the  county  in  which  the  justice 
resides,  setting  forth  that  such  justice,  at  the  time  of  taking  such 
proof  or  acknowledgment,  was  authorized  to  take  the  same,  and 
that  the  clerk  is  acquainted  with  his  hand-writing,  and  believes, 
that  the  signature  to  the  original  certificate  is  genuine. 


Chap.  27. 


CALIFORNIA. 


99 


11 


CHAPTER  XXVII. 


PARTNERSHIPS. 


Partnership  is  the  association  of  two  or  more  persons  for  the 
purpose  of  carrying  on  businecs  together,  and  dividing  its  profits 
between  them. 

Every  partnership  that  is  not  formed  in  accordance  with  the 
law  concerning  mining  or  special  partnerships,  and  every  special 
partnership,  so  far  only  as  the  general  partners  are  concerned,  is 
a  general  partnership. 

Every  general  partner  is  agent  for  the  partnership  in  the  trans- 
action of  its  business,  and  has  authority  to  do  whatever  is  neces- 
sary to  carry  on  such  business  in  the  ordinary  manner,  and  for 
this  purpose  may  bind  his  copartners  by  an  agreement  in  writing. 

A  partner,  as  such,  has  not  authority  to  do  any  of  the  follow- 
ing acts,  unless  his  copartners  have  wholly  abandoned  the  busi- 
ness to  him,  or  are  incapable  of  acting  : 

1.  To  make  an  assignment  of  the  partnership  property  or  any 
portion  thereof  to  a  creditor,  or  to  a  third  person  in  trust,  for  the 
benefit  of  a  creditor  or  of  all  creditors. 

2.  To  dispose  of  the  good  wiU  of  the  business. 

3.  To  dispose  of  the  whole  of  the  partnership  property  at  once, 
unless  it  consists  entirely  of  merchandise. 

4.  To  do  any  act  which  would  make  it  impossible  to  carry  on 
the  ordinary  business  of  the  partnership. 

5.  To  confess  a  judgment. 

6.  To  submit  a  partnership  claim  to  arbitration. 

7.  To  do  any  act  which  is  not  necessary  to  cany  on  such  busi- 
ness in  the  ordinaiy  manner. 

Every  general  partner  is  liable  to  third  persons  for  all  the  obli- 
gations of  the  partnership,  jointly  with  his  copartners. 

Any  one  i)ermitting  himself  to  be  represented  as  a  partner, 
general  or  special,  is  liable  as  such  to  third  persons  to  whom 
such  representation  is  communicated,  and  who,  on  the  faith 
thereof,  give  credit  to  the  partnership. 


100 


CALIFORNIA. 


[Part  3. 


The  liability  of  a  general  partner  for  the  acts  of  his  copartners 
continiioH,  even  after  a  dissolution  of  the  copartnership,  in  favor 
of  peiHouH  who  have  had  dealings  with  and  given  credit  to  the 
partnership  during  its  existence,  until  they  have  had  personal 
notice  of  the  dissolution ;  and  in  favor  of  other  persons  until 
Huch  dissolution  has  been  advertised  in  a  newspaper  published 
in  every  county  where  the  partnership,  at  the  time  of  its  disso- 
lution, had  a  place  of  business,  if  a  newspai)er  is  there  published, 
to  the  extent  in  either  case  to  which  such  persons  part  with  value 
in  good  faith,  and  in  the  belief  that  such  jiartner  is  still  a  mem- 
ber of  the  firm. 

After  the  dissolution  of  a  partnership,  any  general  partner 
may  act  in  liquidation  of  its  affairs,  unless  th* liquidation  is  com- 
mitted, by  consent  of  all  the  partners,  to  one  or  more  of  them  ; 
and  in  such  case  the  others  have  no  right  to  act  therein,  but  their 
acts  are  valid  in  favor  of  persons  parting  with  value,  in  good 
faith,  upon  credit  thereof. 

A  partner  authorized  to  act  in  liquidation  may  collect,  com- 
promise, or  release  any  debts  due  to  the  partnership,  paj'  or 
compromise  any  claims  against  it,  and  disiDose  of  the  partner- 
ship property ;  and  he  may  indorse,  in  the  name  of  the  firm, 
promissory  notes  or  other  obligations  held  by  the  partnership, 
for  the  purpose  of  collecting  the  same ;  but  he  cannot  create 
any  new  obligation  in  its  name,  or  revive  a  debt  against  the  firm 
by  an  acknowledgment,  when  an  action  theron  is  barred. 

Except  as  hereafter  provided,  every  partnership  transacting 
business  in  this  State  under  a  fictitious  name,  or  a  designation 
not  showing  the  names  of  the  persons  interested  as  partners  in 
such  business,  must  file  with  the  clerk  of  the  county  in  which 
its  principal  place  of  business  -is  situated,  a  certificate  stating 
the  names  in  full  of  all  the  members  of  such  partnership  and 
their  places  of  residence,  and  publish  the  same  once  a  week  for 
four  successive  weeks  in  a  newspaper  published  in  the  county, 
if  there  be  one,  and  if  there  be  none  in  such  county,  then  in  a 
newspaper  published  in  an  adjoining  county. 

A  commercial  or  banking  partnership,  established  and  trans 
acting  business  in  a  place  without  the  United  States,  may,  with- 
out filing  the  certificate,  or  making  the  publication  heretofore 


^P-u^jS?.".  ;t.«rtaMi«aT«nitfK)3 


Chap.  27.] 


CALIFORNIA, 


101 


ting 
,tion 
'8  in 
hieh 
itiug 
and 
for 
inty, 
in  a 

ran  8 
fiih- 
jfore 


mentioned,  use  in  this  State  the  pai*tnersliip  name  used  by  it 
there,  although  it  be  fictitious,  or  do  not  show  the  names  of  the 
persons  interested  as  partners  in  such  business. 

The  certificate  filed  with  the  clerk  must  be  signed  by  the  part- 
ners, and  acknowledged  before  some  officer  authorized  to  take 
the  acknowledgment  of  conveyances  of  r?al  property.  Where 
the  partnership  is  formed  after  the  first  of  July,  eighteen  hun- 
dred and  seventy-four,  the  certificate  must  be  filed  and  the  pub- 
lication made  within  one  month  after  the  formation  of  the 
partnership,  or  within  one  month  from  the  time  designated  in 
the  agreement  of  its  members  for  the  commencement  of  the 
partnership.  Where  the  partnership  has  been  formed  prior  to 
the  first  of  July,  eighteen  hundred  and  seventy-four,  the  certifi- 
cate must  be  filed  and  the  publication  made  within  six  months 
after  the  first  of  July  aforesaid. 

On  every  change  in  the  members  of  a  partnership  transacting 
business  in  this  State  under  a  fictitious  name,  or  a  designation 
which  does  not  show  the  names  of  the  persons  interested  as 
partners  in  its  business,  (except  in  the  case  of  a  commercial  or 
banking  partnership,  established  and  transacting  business  in  a, 
place  without  the  United  States,  as  well  as  in  this  Stafe)  a  new 
certificate  must  be  filed  and  a-  new  publication  made,  as  is  re- 
quired on  the  formation  of  such  partnership. 

Persons  doing  business  as  partners  contrary  to  the  aforesaid 
provisions,  shall  not  maintain  any  action  upon  or  on  account  of 
any  contract  made  or  transactions  had  in  their  partnership 
name,  in  any  Court  of  this  State,  until  they  have  first  filed  the 
certificate  and  made  the  publication  required.  Copies  of  the 
entries  of  a  county  clerk,  when  certified  by  him,  and  affidavits 
of  publication  made  by  the  printer,  publisher,  or  chief  dark  of 
a  newspaper,  are  presumptive  evidence  of  the  facts  therein 
stated. 

Special  partnerships  are  formed  by  filing  a  certificate  witTh 
the  county  clerk  and  recorder,  severally  signed,  stating  : 

1.  The  name  under  which  the  partnership  is  to  be  conducted. 

2.  The  general  nature  of  the  business  intended  to  be  trans- 
acted. 

3.  The  names  of  all  the  partners,  ^nd  their  residences,  speci- 
fying which  are  general  and  which  are  special  partners. 


102 


CALIFORNIA. 


[Part  3. 


4,  The  amount  of  capital  which  each  special  partner  has  con- 
tributed to  the  common  stock, 

5.  The  periods  at  which  such  partnerships  shall  begin  and 
end. 

Affidavits  must  be  made  and  filed,  setting  forth  the  amount 
actually  contributed  by  the  special  partners. 

The  certificate  mentioned  must  be  published  in  a  newspaper 
in  the  county,  once  a  week  for  four  successive  weeks. 

The  genei'al  partners  in  a  special  partnership  are  liable  to  the 
same  extent  as  partners  in  a  general  partnership.  Tiie  contri- 
bution of  a  special  partner  to  the  capital  of  the  firm ,  and  the 
increase  thereof,  is  liable  for  its  debts,  but  he  is  not  otherwise 
liable  therefor. 


CHAPTER  XXVIII. 
MAKBIED  WOMEN. 

All  property  of  the  wife  owned  by  her  before  marriage,  and 
that  acquired  afterwards  by  gift,  bequest,  devise,  or  descent, 
with  the  rents  issues,  and  profits  thereof,  is  her  separate  property. 
All  propeiiy  owned  by  the  husband  before  marriage,  and  that 
acquired  afterwards  by  gift,  bequest,  devise,  or  descent,  with  the 
rents,  issues,  and  profits  thereof,  is  his  separate  property.  All 
other  property  acquired  after  marriage,  by  either  husband  or 
wife,  or  both,  is  community  property.  The  earnings  of  the  wife 
are  not  liable  for  the  debts  of  the  husband.  The  earnings  and 
accumulations  of  the  wife,  and  her  minor  children  living  with 
her  and  in  her  custody,  while  she  is  living  separate  from  her 
husband,  are  the  separate  property  of  the  wife. 

The  separate  property  of  the  wife  is  not  liable  for  the  debts 
of  her  husband,  but  is  liable  for  her  own  debts,  contracted  be- 
fore or  after  marriage.  The  separate  property  of  the  husband  is 
not  liable  for  the  debts  of  the  wife  contracted  before  marriage. 
The  property  of  the  community  is  not  liable  for  the  contracts  of 


mm 


Chap.  '28.  J 


CALIFORNIA. 


103 


the  wife  made  after  marriage,  unless  secured  by  a  pledge  or 
mortgage  thereof  executed  by  the  husband. 

The  husband  has  the  management  and  control  of  the  cornmu- 
nity  property,  with  the  like  absolute  power  of  disposition  (other 
than  ttM^amentary)  as  he  has  of  his  separate  estate  No  estate 
in  dower  is  allotted  to  the  wife  upon  the  death  of  her  husband. 

If  the  husband  neglects  to  make  adequate  p^'svision  for  the 
support  of  his  wife,  any  other  person  may,  in  ^^  jd  faith,  K'lpply 
her  with  artic^'^s  necessary  for  her  support,  and  recover  the  rea- 
sonable vaiue  thereof  from  the  husband ;  except  tLat  a  husband 
abaVoned  by  his  wife  is  not  liable  for  her  snppoit  until  she 
offers  to  return,  unless  she  was  justified,  by  his  misconduct,  in 
abandoning  him ;  nor  is  he  liable  for  her  support  when  she  is 
living  separate  from  him,  by  agreement,  unless  such  support  is 
stipulated  in  the  agreement. 

A  married  woman  may  become  a  sole  trader  by  the  judgment 
of  the  County  Court  of  the  county  in  which  she  has  resided  for 
six  months  next  preceding  the  application. 

A  certified  copy  of  the  decree  of  the  Court  must  be  recorded 
in  the  office  of  the  recorder  of  the  C9unty  where  the  business 
is  to  be  carried  on. 

A  sole  trader  is  entitled  to  carry  on  the  business  specified,  in  her 
own  name,  and  the  property,  revenues,  moneys  and  credits  so 
by  her  invested,  and  the  profits  thereof,  belong  exclusively  to 
her,  and  are  not  liable  for  any  debts  of  her  husband.  The  hus- 
band of  a  sole  trader  is  not  liable  for  any  debts  contracted  by 
her  in  the  course  of  her  sole  trader's  business,  unless  contracted 
upon  his  written  consent. 


104 


CALIFORNIA. 


[Part  3. 


CHAPTER  XXIX. 


MINOES. 


Minors  are  males  under  twenty-one  years  of  age,  females  under 
eighteen  years  of  age. 

A  minor  cannot  give  a  delegation  of  power,  nor,  under  the  age 
of  eighteen,  make  a  contract  relating  to  real  property,  or  any 
interest^jtherein,  or  relating  to  any  personal  property  not  in  his 
immediate  possession  or  control.  A  minor  may  make  any  other 
contract,  in  the  same  manner  as  an  adult,  subject  to  his  power  of 
disafQrmance.  A  minor  cannot  disaffirm  a  contract,  otherwise 
valid,  to  pay  the  reasonable  value  of  things  necessaiy  for  his 
support,  or  that  of  his  family,  ente^'ed  into  by  him  when  not 
under  the  care  of  a  parent  or  guardian  able  to  provide  for  him 
or  them.  Nor  can  a  minor  disaffirm  an  obligation,  otherwise 
valid,  entered  into  by  him  under  the  express  authority  or  direc- 
tion of  a  statute.  In  all  other  cases,  the  contract  of  a  minor,  if 
made  whilst  he  is  under  the  age  of  eighteen,  may  be  disaffirmed  by 
the  minor  himself,  either  before  his  majority,  or  within  a  reason- 
able time  afterwards  ;  or  in  case  of  his  death  within  that  period, 
by  his  heirs  or  personal  representatives  ;  and  if  the  contract  be 
made  by  the  minor  whilst  he  is  over  the  age  of  eighteen,  it  may 
be  disaffirmed  in  like  manner,  upon  restoring  the  consideration 
to  the  party  from  whom  it  was  received,  or  paying  its  equivalent. 

If  a  parent  neglect  to  provide  articles  necessary  for  his  child, 
who  is  under  his  charge,  according  to  his  circumstances,  a  third 
person  may  in  good  faith  supply  such  necessaries,  and  recover 
the  reasonable  value  thereof  from  the  parent. 

A  minor  may  enforce  his  rights  by  civil  action,  or  other  legal 
proceedings,  in  the  same  manner  as  a  person  of  full  age,  except 
that  a  guardian  must  conduct  the  same. 


Chap.  30.] 


CALIFOBNU. 


105 


CHAPTER  XXX. 
STOPPAGE  IN  TRANSIT. 

A  seller  or  consignor  of  property,  whose  claim  for  its  price  or 
proceeds  has  not  been  extinguished,  may,  upon  the  insolvency 
of  the  buyer  or  consignee  becoming  known  to  him  after  parting 
with  the  property,  stop  it  whil^  on  its  transit  to  the  buyer  or 
consignee,  and  resume  possession  thereof.  A  person  is  insol- 
vent, within  the  meaning  of  the  above  term,  when  he  ceases  to 
pay  his  debts  in  the  ma:  tner  usual  with  persons  of  his  business, 
or  when  he  declares  his  inability  or  unwillingness  to  do  so.  The 
transit  of  property  iS  at  an  end  when  it  comes  into  the  possession 
of  the  consignee,  or  into  that  of  his  agent,  unless  such  agent  is 
employed  merely  to  forward  the  property  to  the  consignee. 
Stoppage  in  transit  can  be  eflfected  only  by  notice  to  the  carrier 
or  depositary  of  the  property,  or  by  taking  actual  possession 
thereof. 

Stoppage  in  transit  does  not,  of  itself,  rescind  a  sale,  but  is  a 
means  of  enforcing  the  lien  of  the  seller. 

A  bona  fide  transfer  of  a  bill  of  lading  defeats  the  right  of 
stoppage  in  transit,  if  such  transfer  is  made  before  the  right  of 
•stoppage  has  been  actually  exercised  by  the  cotisignor. 


td 


CHAPTER  XXXI. 


BILLS  OF  LADING. 

A  bill  ^f  lading  is  an  instrument  in  writing,  signed  by  a  car- 
rier or  his  agent,  describing  the  freight  so  as  to  identify  it,  stat- 
ing the  name  of  the  consignor,  the  terms  of  the  contract  for 
carriage,  and  agreeing  or  directing  that  the  freight  be  dehve)-ed 
to  the  order  or  assigns  of  a  specified  person,  at  a  specified 
place. 


106 


OALIFOBNIA. 


[Part  3. 


The  title  to  the  freight  which  the  first  holder  of  a  bill  of  lad- 
ing had  when  he  received  it,  passes  to  every  subsequent  indorsee 
thereof,  in  good  faith  and  for  value,  in  the  ordinary  course  of 
business,  with  like  effect,  and  in  like  manner,  as  in  the  case  of 
a  bill  of  exchange.  If  a  bill  of  lading  is  made  payable  to 
"bearer,"  it  is  transferable  by  delivery. 


CHAPTER  XXXII. 
INTEREST. 

Unless  there  is  an  express  contract  in  writing  fixing  a  differ- 
ent rate,  interest  is  payable  on  all  moneys  at  the  rate  of  seven 
per  cent,  per  annum,  after  they  become  due,  on  any  instrument 
of  writing  except  a  judgment,  and  on  moneys  lent  or  due  on 
any  settlement  of  accounts  from  the  day  on  which  the  balance 
is  ascertained,  and  on  moneys  received  to  the  use  of  another, 
and  detained  from  him.  In  the  computation  of  interest  for  a 
period  less  than  a  year,  three  hundred  and  sixty  days  are  deemed 
to  constitute  a  year. 

Interest  is  payable  on  judgments  recovered  in  the  Courts  of  this 
State  at  the  rate  of  seven  per  cent,  per  annum,  and  no  greater 
rate;  but  such  interest  must  not  be  compounded  in  any  manner 
or  form. 

Parties  may  agree  in  writing  for  the  payment  of  any  rate  of 
interest,  and  it  shall  be  allowed,  according  to  the  terms  of  the 
agreement,  until  the  entry  of  judgment;  and  they  may,  in  any 
contract  in  writing  whereby  any  debt  is  secured  to  be  paid,  agree 
that  if  the  interest  on  such  debt  is  not  punctually  paid,  it  shall 
become  a  part  of  the  principal,  and  thereafter  bear  the  same 
rate  as  the  principal  debt. 

Open  accounts  do  not  bear  interest. 


Mil 


Chap.  33.] 


CALIFORNIA. 


107 


CHAPTER  XXXIII. 


COMMON  CARRIERS. 


Unless  the  consignor  accompanies  the  freight,  and  retains  ex- 
clusive control  thereof,  an  inland  common  carrier  of  property  is 
liable,  from  the  time  that  he  accepts  until  he  relieves  himself 
from  liability,  for  the  loss  or  injury  thereof,  except: 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous  ac- 
tion of  the  property  itself. 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of  this 
State. 

3.  The  act  of  the  law;  or 

4.  Any  irresistible  superhuman  cause. 

He  is  liable,  even  in  the  cases  above  excepted,  if  his  ordinary 
negligence  exposes  the  property  to  the  cause  of  the  loss.  A 
common  carrier  is  liable  for  delay  only  when  it  is  caused  by  his 
want  of  ordinary  care  and  diligence. 

A  marine  carrier  is  liable  in  like  manner  as  an  inland  carrier, 
except  for  loss  or  injury  caused  by  the  perils  of  the  sea  or  fire. 


'  1 1 


CHAPTER    XXXIV. 


MORTGAGES  OF  PERSONAL  PROPERTY. 


Mortgages  may  be  made  upon : 

1.  Locomotives,  engines,  and  the   other  rolling  stock  of  a 
railroad. 

2.  Steamboat  machinery,  and  machinery  used  by  machinists, 
foundrymen,  and  mechanics. 

3.  Steam  engiL  3  and  boilers. 

4.  Mining  machinery. 


108 


CALIFOBNIA.. 


[Part  3. 


6.  Printing  presses  and  material. 

6.  Professional  libraries. 

7 .  Instruments  of  a  surveyor,  physician,  or  dentist. 

8.  Upholstery  and  furniture  used  in  hotels,  lodging  or  board- 
ing houses,  when  mortgaged  to  secure  the  purchase  money  of 
the  articles  mortgaged. 

9.  Growing  crops. 

10.  Vessels  of  more  than  five  tons  burden. 

11.  Instruments,  negatives,  furniture  and  fixtures  of  a  photo- 
graphic gallery. 

12.  The  machinery,  casks,  pipes,  tubs  and  utensils  used  in  the 
manufacture  of  virine,  fruit  brandy,  and  fruit  syrup  or  sugar. 

A  mortgage  of  personal  property  is  void  as  against  creditors 
of  the  mortgagor,  and  subsequent  purchasers  and  incumbrancers 
of  the  property  in  good  faith  and  for  value,  unless — 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties  thereto 
that  it  is  made  in  good  faith,  and  without  any  design  to  hinder, 
delay,  or  defraud  creditors. 

2.  11  is  acknowledged  or  proved,  certified  and  recorded. 

A  mortgage  of  personal  property  must  be  recorded  in  the 
office  of  the  county  recorder  of  the  county  in  which  the  mort- 
gagor resides,  and  also  of  the  county  in  which  the  property 
mortgaged  is  situated,  or  to  which  it  may  be  removed. 

A  certified  copy  of  a  mortgage  of  personal  property  once  re- 
corded may  be  recorded  in  any  other  county,  and  when  so  re- 
corded, the  record  thereof  has  the  same  force  and  efltect  as 
though  it  was  of  the  original  mortgage. 

When  property  mortgaged  is  thereafter  by  the  mortgagor  re- 
moved from  the  county  in  which  it  is  situated,  it  is,  except  us 
between  the  parties  to  the  mortgage,  exempt  from  the  operation 
thereof,  unless  either  : 

1.  The  mortgagee,  within  thirty  days  aftei  such  removal,  causes 
the  mortgage  to  be  recorded  in  the  county  to  which  the  projierty 
has  been  removed  ;  or, 

2.  The  mortgagee,  within  thirty  days  after  such  removal,  takes 
possession  of  the  property,  as  prescribed  in  the  next  paragraph. 

If  the  mortgagor  voluntarily  removes  or  permits  the  removal 
of  the  mortgaged  property  from  the  county  in  which  it  was  sit- 


Chap.  34.] 


OALIFOBKIA. 


109 


uated  at  the  time  it  was  mortgaged,  the  mortgagee  may  take  pos- 
session and  dispose  of  the  property  as  a  pledge  for  the  payment 
of  the  debt,  though  the  debt  is  not  due. 

Personal  property  mortgaged  may  be  taken  under  attachment 
or  execution  issued  at  the  suit  of  a  creditor.  Before  the  prop- 
erty is  so  taken,  the  oflScer  must  pay  oi'  tender  to  the  mortgagee 
the  amount  of  the  mortgage  debt  and  interest,  or  must  deposit 
the  amount  thereof  with  the  county  clerk  or  treasurer,  payable 
to  the  order  of  the  mortgagee. 

When  the  property  thus  taken  is  sold  under  process,  the  officer 
must  apply  the  proceeds  of  sale  as  follows  : 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee,  with 
interest  from  the  date  of  such  payment ;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of  sales 
under  execution  are  applied  in  other  cases. 

A  mortgagee  of  personal  property,  when  the  debt  to  secure 
which  the  mortgage  was  executed  becomes  due,  may  foreclose 
the  mortgagor's  right  of  redemption  by  a  sale  of  the  property 
made  in  the  manner  prescribed  in  the  chapter  on  "  pledge,"  or 
may  proceed  by  a  judicial  sale  under  the  direction  of  a  compe- 
tent Court. 


CHAPTER    XXXV. 


PLEDGE. 


A  pledge  is  a  deposit  of  personal  property  by  way  of  security 
for  the  performance  of  another  act. 

Where  a  debtor  has  obtained  credit,  or  an  extension  of  time, 
by  a  fraudulent  misrepresentation  of  the  value  of  property 
pledged  by  or  for  him,  the  creditor  may  demand  a  further 
pledge  to  correspond  with  the  value  represented;  and  in  default 
thereof  may  recover  his  debt  immediately,  though  it  be  not  ac- 
tually due. 

When  performance  of  the  act  for  which  a  pledge  is  given  is 


ill 


110 


CALIFORNIA. 


[Part  3. 


due,  in  whole  or  in  part,  the  pledgee  may  collect  what  is  due  to 
him  by  a  sale  of  the  propei^ty  pledged. 

Before  property  pledged  can  be  sold,  and  after  performance 
of  the  act  for  which  it  is  security  is  due,  the  pledgee  must  de- 
mand performance  thereof  from  the  debtor,  if  the  debtor  can  be 
found. 

A  pledgee  must  give  actual  notice  to  the  pledgor  of  the  time 
and  place  at  which  the  property  pledged  will  be  sold,  at  such  a 
reasonable  time  before  the  sale  as  will  enable  the  pledgor  to  at- 
tend. 

The  sale  by  a  pledgee  of  property  pledged  must  be  made  by 
public  auction,  in  the  manner  and  upon  the  notice  to  the  public 
usual  at  the  place  of  sale,  in  respect  to  auction  sales  of  similar 
property;  and  must  be  for  the  highest  obtainable  price. 

A  pledgee  cannot  sell  any  evidence  of  debt  pledged  to  him, 
except  the  obligations  of  governments.  States,  or  corporations; 
but  he  may  collect  the  same  when  due. 

The  pledgor  may  require  the  property  to  be  sold  when  it  will 
bring  a  sufficient  amount  to  satisfy  the  claim  of  the  pledge. 

A  pledgee  or  pledge-holder  cannot  purchase  the  property 
pledged,  except  by  direct  dealings  with  the  pledgor. 

Instead  of  selling  property  pledged,  as  hereinbefore  provided, 
a  pledgee  may  foreclose  the  right  of  redemption  by  a  judicial 
sale,  under  the  directions  of  a  competent  Conrt;  and  in  that 
case  may  be  authorized  by  the  Court  to  purchase  at  the  sale. 


CHAPTER   XXXVI. 
GUARANTY  AND  SURETYSHIP. 

A  guaranty  is  a  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another  person. 

Where  a  guaranty  is  entered  into  at  the  same  time  with  the 
original  obligation,  or  with  the  acceptance  of  the  latter  by  the 
guarantee,  and  forms  with  that  obligation  a  part  of  the  con- 


,S^rt««.ftr^W«*i>r-vi^ 


Chap.  36.] 


OALIFORNU. 


Ill 


Le 

le 


sideration  to  him,  no  other  consideration  need  exist.  In  all 
other  cases  there  must  be  a  consideration  distinct  from  that  of 
the  original  obligation. 

Except  as  hereinafter  described,  a  guaranty  must  be  in  writ- 
ing, and  signed  by  the  guarantor;  but  the  writing  need  not  ex- 
press a  consideration. 

A  promise  to  answer  for  the  obligation  of  another,  in  any  of 
the  following  cases,  is  deemed  an  original  obligation  of  the 
promisor,  and  need  not  be  in  writing;. 

1.  Where  the  promise  is  made  by  one  who  has  received  pro- 
perty of  another  upon  an  undertaking  to  apply  it  pursuant  to 
such  promise;  or  by  one  who  has  received  a  discharge  from  an 
obligation  in  whole  or  in  part,  in  consideration  of  such  promise. 

2.  Where  the  creditor  parts  with  value,  or  enters  into  an  obli- 
gation in  consideration  of  the  obligation  in  respect  to  which  the 
promise  is  made,  in  terms  or  under  circumstances  such  as  to  ren- 
der the  party  making  the  promise  the  principal  debtor,  and  the 
person  in  whose  behalf  it  is  made  his  surety. 

3.  Where  the  promise,  being  for  an  antecedent  obligation  of 
another,  is  made  upon  the  consideration  that  the  party  receiving 
it  cancels  the  antecedent  obligation,  accepting  the  new  promise 
as  a  substitute  therefor;  or  upon  the  consideration  that  the 
party  receiving  it  releases  the  property  from  a  levy,  or  his  per- 
son from  imprisonment,  under  an  execution  on  a  judgment  ob- 
tained upon  the  antecedent  obligation;  or  upon  a  consideration 
beneficial  to  the  promisor,  whether  moving  from  either  party  to 
the  antecedent  obligation,  or  from  another  person, 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell  mer- 
chandise and  guarantee  the  sale. 

5.  W^here  the  holder  of  an  instrument  for  the  payment  of 
monej^  upon  which  a  third  person  is  or  may  become  liable  to 
him,  transfers  it  in  payment  of  a  precedent  debt  of  his  own,  or 
for  a  new  consideration,  and  in  connection  with  such  transfer 
enters  into  a  promise  respecting  such  instrument. 

A  guarantor  is  exonerated,  except  so  far  as  he  may  be  indem- 
nified by  the  principal,  if  by  any  act  of  the  creditor  without  the 
consent  of  the  guarantor  the  original  obligation  of  the  principal 
is  altered  in  any  respect,  or  the  remedies  or  rights  of  the  credi- 


112 


CALIFORNIA. 


[Part  3. 


tor  against  the  principal  in  respect  thereto  are  in  any  way  im- 
paired or  suspended. 

A  surety  is  one  who,  at  the  request  of  another,  and  for  the 
purpose  of  securing  to  him  a  benefit,  becomes  responsible  for 
the  performance,  by  the  latter,  of  some  act  in  favor  of  a  third 
person,  or  hypothecates  property  as  security  therefor. 

A  surety  is  exonerated  : 

1.  In  like  manner  with  a  guarantor. 

2.  To  the  extent  to  which  he  is  prejudiced  by  any  act  of  the 
creditor  which  would  naturally  prove  injurious  to  the  remedies 
of  the  surety,  or  inconsistent  with  his  rights,  or  which  lessens 
his  security ;  or, 

3.  To  the  extent  to  which  he  is  prejudiced  by  an  omission  of 
the  creditor  to  do  anything,  when  required  by  the  surety,  which 
it  is  his  duty  to  do. 

A  surety  has  all  the  rights  of  a  guarantor. 

A  surety  may  require  his  creditor  to  proceed  against  the  prin- 
cipal, or  to  pursue  any  other  remedy  in  his  power  which  the 
surety  cannot  himself  pursue,  and  which  would  lighten  his  bur- 
den ;  and  if  in  such  case  the  creditor  neglects  to  do  so,  the  surety 
is  exonerated  to  the  extent  to  which  he  is  thereby  prejudiced. 

A  surety  may  compel  his  principal  to  perform  the  obligation 
when  due, 

A  surety,  upon  satisfying  the  obligation  of  the  principal,  is 
entitled  to  enfore  every  remedy  which  the  creditor  then  has 
against  the  principal,  to  the  extent  of  reimbursing  what  he  has 
expended,  and  also  to  require  all  his  co-sureties  to  contribute 
thereto,  without  regard  to  the  order  of  time  in  which  they  be- 
came such. 

Whenever  property  of  a  surety  is  hypothecated  with  property 
of  the  principal,  the  surety  is  entitled  to  have  the  property  of 
the  principal  first  applied  to  the  discharge  of  the  obligation. 

Letter  of  Credit, 


A  letter  of  credit  is  a  written  instrument,  addressed  by  one 
person  to  another,  requesting  the  latter  to  give  credit  to  the 
person  in  whose  favor  it  is  drawn. 


Chap.  36.] 


CALIFORNIA. 


113 


The  writer  of  a  letter  of  credit  is,  upon  the  default  of  the 
debtor,  liable  to  those  who  gave  credit  in  compliance  with  its 
terms. 


CHAPTER    XXXVII. 


SALE. 


No  sale  of  personal  property,  or  agreement  to  buy  or  sell  it, 
for  a  price  of  two  hundred  dollars  or  more,  is  valid,  unless : 

1.  The  agreement,  or  some  note  or  memorandum  thereof,  be 
in  writing,  and  subscribed  by  the  party  to  be  charged,  or  by  his 
agent;  or, 

2.  The  buyer  accepts  and  receives  part  of  the  thing  sold,  or 
when  it  consists  of  a  thing  in  action,  part  of  the  evidences 
thereof,  or  some  of  them;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  part  of  the  price. 

The  foregoing  provisions  do  not  aflfect  an  agreement  to  manu- 
facture a  thing  from  materials  furnished  by  the  manufacturer  or 
by  another  person. 

No  agreement  for  the  sale  of  real  property,  or  of  an  interest 
therein,  is  valid,  unless  the  same,  or  some  note  or  memorandum 
thereof,  be  in  writing,  and  subscribed  by  the  party  to  be 
charged,  or  his  agent  thereunto  authorized  in  writing. 

If  a  buyer  of  personal  property  does  not  pay  for  it  according 
to  contract,  and  it  remains  in  the  possession  of  the  seller  after 
payment  is  due,  the  seller  may  rescind  the  sale,  or  enforce  his 
lien  for  the  price. 

In  order  to  make  a  sale  of  personal  property  effectual  as 
against  creditors,  there  must  be  an  immediate,  actual,  and  con- 
tinued change  of  possession. 


w 


ii  ; 


1; 


W  £f 


i'Vi 


^ii 


114 


OAUFORNU. 


Part  3. 


CHAPTER  XXXVIII. 


CONTRACTS. 


A  contract  is  an  agreement  to  do  or  not  to  do  a  certain  thing. 
It  is  essential  to  the  existence  of  a  contract  that  there  should 
be: 

1.  Parties  capable  of  contracting. 

2.  Their  consent. 

3.  A  lawful  object. 

4.  A  sufficient  cause  of  consideration. 

A  written  instrument  is  presumptive  evidence  of  considera- 
tion. 

Contracts  are  either  express  or  implied. 

An  express  contract  is  one,  the  terms  of  which  are  stated  in 
words. 

An  implied  contract  is  one,  the  existence  and  terms  of  which 
are  manifested  by  conduct. 

The  following  contracts  are  invalid,  unless  the  same,  or  some 
note  or  memorandum  thereof,  be  in  writing,  and  subscribed  by 
the  party  to  be  charged,  or  by  his  agent : 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed  with- 
in a  year  from  the  making  thereof. 

2.  A  special  promise  to  answer  for  the  debts,  default  or  mis- 
carriage of  another,  except  in  the  case  mentioned  in  Chapter 
XXXVI. 

3.  An  agreement  made  upon  consideration  of  marriage,  other 
than  a  mutual  promise  to  marry. 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  thinga  in 
action,  at  a  j)rice  not  less  than  two  hundred  dollars,  unless  the 
buyer  accept  or  receive  part  of  such  ^oods  and  chattels,  or  the 
evidences,  or  some  of  them,  of  such  things  in  action,  or  pay  at 
the  time  some  part  of  the  purchase  money ;  but  when  a  sale  is 
made  by  auction,  an  entry  by  the  auctioneer  in  his  sale  book,  at 
the  time  of  the  sale,  of  the  kind  of  property  sold,  the  terms  of 
sale,  the  price,  and  the  names  of  the  purchaser  and  person  on 
whose  account  the  sale  is  made,  is  a  sufficient  memorandum. 


Chap.  38.] 


CALIFORNIA. 


116 


5 .  An  agreement  for  the  leasing  for  a  longer  period  than  one 
year,  or  for  the  sale  of  real  property,  or  of  an  interest  therein ; 
and  such  agreement,  if  made  by  an  agent  of  the  party  sought  to 
be  charged,  is  invalid,  unless  the  authority  of  the  agent  be  in 
writing,  subscribed  by  the  party  sought  to  be  charged. 

6.  An  agreement  authorizing  or  employing  an  agent  or  broker 
to  purchase  or  sell  real  estate  for  compensation  or  a  commission. 

All  contracts  may  be  oral,  except  such  as  are  specially  required 
by  statute  to  be  in  writing. 


CHAPTER  XXXTX. 


NEGOTIABLE  INSTEUMENTS. 


A  bill  of  exchange  is  an  instrument  negotiable  in  form,  by 
Avhich  one,  who  is  called  the  drawer  requests  another,  called 
the  drawee,  to  pay  a  specified  sum  of  money. 

A  bill  of  exchange  is  jDayable : 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable;  or, 

2.  If  it  specify  no  place  of  payment,  then  at  the  place  to 
which  it  is  addressed;  or, 

3.  If  it  is  not  addressed  to  any  place,  then  at  the  place  of 
residence  or  business  of  the  drawee,  or  wherever  he  may  be 
found.  If  the  drawee  has  no  place  of  business,  or  if  his  place 
of  business  or  residence  cannot,  with  reasonable  diligence,  be 
ascertained,  presentment  for  payment  is  excused,  and  the  bill 
may  be  protested  for  non-payment. 

Presentment  of  a  bill  of  exchange  for  acceptance  must  be 
made  in  the  following  manner,  as  nearly  as  by  reasonable  dili- 
gence it  is  practicable : 

1.  The  bill  must  be  presented  by  the  holder  or  his  agent. 

2.  It  must  be  presented  on  a  business  day,  and  within  reason- 
able hours. 

3.  It  must  be  presented  to  the  drawee,  or  if  he  be  absent 
from  his  place  of  residence  or  business,  to  some  person  having 
charge  thereof,  or  employed  therein;  and. 


116 


CALIFORNIA. 


[Part  3. 


4.  The  drawee,  on  such  presentment,  may  postpone  his  ac- 
ceptance or  refusal  until  the  next  day.  If  the  drawee  have  no 
place  of  husiness,  or  if  his  place  of  business  or  residence  can- 
not, with  reasonable  diligence,  be  ascertained,  presentment  for 
acceptance  is  excused,  and  the  bill  may  be  protested  for  non-uc- 
ceptance. 

When  a  bill  of  exchange  is  payable  at  a  specified  time  iifter 
sight,  the  drawer  and  endorsers  are  exonerated  if  it  is  not  jjre- 
sented  for  acceptance  within  ten  days  after  the  time  which  would 
suflSce,  with  ordinary  diligence,  to  forward  it  for  acceptance, 
unless  presentment  is  excused. 

An  acceptance  of  a  bill  must  be  made  in  writing,  and  may  be 
made  by  the  acceptor  writing  his  name  across  the  face  of  the 
bill,  with  or  without  other  words. 

An  unconditional  promise,  in  writing,  to  accept  a  bill  of  ex- 
change, is  a  sufficient  acceptance  thereof,  in  favor  of  every  per- 
son who  upon  the  faith  thei'eof  has  taken  the  bill  for  value  or 
other  good  consideration. 

On  the  dishonor  of  a  bill  of  exchange  by  the  drawee,  and  in 
case  of  a  foreign  bill,  after  it  has  been  duly  protested,  it  may  be 
accepted  or  paid  by  any  person,  for  the  honor  of  any  party 
thereto. 

If  a  bill  of  exchange,  payable  at  sight  or  on  demand,  without 
interest,  is  not  duly  presented  for  payment  within  ten  days  after 
the  time  in  which  it  could,  with  reasonable  diligence,  be  trans- 
mitted to  the  proper  place  for  presentment,  the  drawer  and  en- 
dorsers are  exonerated  unless  such  presentment  is  excused. 

The  presentment  of  a  bill  of  exchange  for  acceptance  is  ex- 
cused if  the  drawee  has  not  capacity  to  accept  it. 

Delay  in  the  presentment  of  a  bill  of  exchange  for  acceptance 
is  excused,  when  caused  by  circumstances  over  which  the  owner 
has  no  control. 

Presentment  of  a  bill  of  exchange  for  acceptance  or  payment, 
and  notice  of  its  dishonor,  are  excused  as  to  the  drawer,  if  he 
forbids  the  drawee  to  accept,  or  the  acceptor  to  pay  the  bill;  or 
if,  at  the  time  of  drawing,  he  had  no  reason  to  believe  that  the 
drawee  would  accept  t)r  pay  the  sanxe. 

An  inland  bill  of  exchange  is  one  drawn  and  payable  within 
this  State.     All  others  are  foreign. 


hy 


Chap.  39. 


CALIFORNIA. 


117 


In 


Notice  of  the  dishonor  of  a  foreign  bill  of  exchange  can  be 
given  only  by  notice  of  its  protest,  and  the  protest  must  be 
made  by  a  notary  public,  if  with  reasonable  diligence  one  can 
be  obtained;  and  if  not,  then  by  any  reputable  person,  in  the 
presence  of  two  witnesses.  Protest  for  non-acceptance  must  be 
made  in  the  city  or  town  in  which  the  bill  is  presented  for  ac- 
ceptance, and  a  protest  for  non-payment  in  the  city  or  jown  in 
which  it  is  presented  for  payment. 

One  who  pays  a  foreign  bill  for  honor  must  declare,  before 
payment,  in  the  presence  of  a  person  authorized  to  make  pro- 
test, for  whose  honor  he  pays  the  same,  in  order  to  entitle  him 
to  reimbursement. 

Damage  on  foreign  bills  of  exchange  are  allowed  as  herein- 
after prescribed,  as  a  full  comi^ensation  for  interest  accrued  be- 
fore notice  of  dishonor,  re-exchange,  expenses,  and  all  other 
damages,  in  favor  of  holders  for  value  only,  upon  bills  of  ex- 
change drawn  or  negotiated  within  this  State,  and  protested  for 
non-acceptance  or  non-payment. 

Damages  are  allowed  as  follows  : 

1.  If  drawn  upon  any  person  in  this  State,  two  dollars  upon 
each  one  hundred  dollars  of  the  principal  sum  specified  in  the 
bill. 

2.  If  drawn  upon  any  person  out  of  this  State,  but  in  any 
other  of  the  States  west  of  the  Rocky  Mountains,  five  dollars 
upon  each  hundred  dollars  of  the  principal  sum  specified  in  the 
bill. 

3.  If  drawn  upon  any  person  in  any  of  the  United  States,  east 
of  the  Rocky  Mountains,  ten  dollars  upon  each  hundred  dollars 
of  the  princii)al  sum  specified  in  the  bill. 

4.  If  drawn  upon  any  person  in  any  place  in  a  foreign  country, 
fifteen  dollars  upon  each  hundred  dollars  of  the  principal  sum 
specified  in  the  bill. 

From  the  time  of  notice  of  dishonor  and  demand  of  payment, 
lawful  interest  must  be  allowed  upon  the  aggregate  amount  of 
the  principal  sum  specified  in  the  bill,  and  the  damages  above 
mentioned. 

A  promissory  note  is  an  infilrument  negotiable  in  form,  where- 
by the  signer  promises  to  pay  a  specified  sum  of  money. 


118 


CALIFORNIA. 


Part  3. 


If  a  promissory  note,  payable  on  demand,  or  at  sight,  without 
interest,  is  not  duly  presented  for  payment  within  six  months 
from  its  date,  the  indorsers  thereof  are  exonerated,  unless  such 
presentment  is  excused. 

Days  of  grace  are  not  allowed  on  bills  of  exchange  and  prom- 
issory notes. 

A  check  is  a  bill  of  exchange  drawn  upon  a  bank  or  banker, 
or  a  person  described  as  such  upon  the  face  thereof,  and  paya- 
ble on  demand  without  interest. 

A  check  is  subject  to  all  the  provisions  herein  mentioned^con- 
cerning  bills  of  exchange,  except  that : 

1.  The  drawer  and  indorsers  are  exonerated  by  delay  in  pre- 
sentation only  to  the  extent  of  the  injury  they  suflfer  theieby. 

2.  An  indorsee,  after  its  apparent  maturity,  but  without  actual 
notice  of  its  dishonor,  acquires  a  title  equal  to  that  of  an  indor- 
see before  such  period, 

A  negotiable  instrument  must  be  made  payable  in  money  only, 
and  without  any  condition  not  certain  of  fulfillment. 

A  negotiable  instrument  may  be  with  or  without  date,  and 
with  or  without  designation  of  the  time  or  place  of  payment. 

A  negotiable  instrument  may  contain  a  pledge  of  collateral 
security,  with  authority  tc  'dispose  thereof. 

A  negotiable  instrument  which  does  not  specify  a  place  of  pay- 
ment is  payable  at  the  residence  or  place  of  business  of  the 
maker,  or  wherever  he  may  be  found. 

A  negotiable  instrument,  made  payable  to  the  order  of  the 
maker,  or  of.  a  fictitious  person,  if  issued  by  the  maker  for  a 
valid  consideration,  without  indorsement,  has  the  same  effect 
against  him  and  all  other  persons  having  notice  of  the  facts  as 
if  payable  to  the  bearer. 

An  indorsement  of  a  negotiable  instrument  may  be  general  or 
special. 

A  general  indorsement  is  one  by  which  no  indorsee  is  named. 
A  special  indorsement  specifies  the  indorsee. 

A  negotiable  instrument  bearing  a  general  indorsement  can- 
not be  afterwards  specially  indorsed;  but  any  lawful  holder  may 
turn  a  general  indorsement  into  a  special  one,  by  writing  above 
it  a  direction  for  payment  to  a  particular  person. 


Chap.  39.] 


CAIilFORNU. 


119 


\o\  or 
led. 

can- 
may 
ibove 


A  special  indorsement  may,  by  express  words  for  that  purpose, 
but  not  otherwise,  be  so  made  as  to  render  the  instrument  not 
negotiable. 

An  indorser  may  qualify  his  indorsement  with  the  words, 
"without  recourse,"  or  equivalent  words;  and  upon  such  in- 
dorsement he  is  responsible  only  to  the  same  extent  as  in  the 
case  of  a  transfer  without  indorsement. 

An  indorsee  in  due  course  is  one  who,  in  good  faith,  in  the 
ordinary  course  of  business,  and  for  value,  before  its  apparent 
maturity  or  presumptive  dishonor,  and  without  knowledge  of  its 
actual  dishonor,  acquires  a  negotiable  instrument  duly  indorsed 
to  him,  or  indorsed  generally,  or  payable  to  the  bearer. 

An  indorsee  of  a  negotiable  instrument,  in  due  course,  acquires 
an  absolute  title  thereto,  so  that  it  is  valid  in  his  hands,  notwith- 
standing any  provision  of  law  making  it  generally  void  or  void- 
able, and  notwithstanding  any  defect  in  the  title  of  the  jierson 
from  whom  he  acquired  it. 

The  want  of  consideration  for  the  undertaking  of  a  maker, 
acceptor,  or  iudoraer  of  a  negotiable  instrument  does  not 
exonerate  him  from  liabilitj'  thereon  to  an  indorsee  in  good 
faith  for  a  cosideration. 

It  is  not  necessary  to  make  a  demand  of  payment  upon  the 
principal  debtor  in  a  negotiable  instrument  in  order  to  charge 
him;  but  if  the  instrument  is,  by  its  teniis,  payable  at  a  speci- 
fied place,  and  he  in  able  and  willing  to  ^liy  it  there  at  maturity, 
such  ability  an»l  wiliiugr  ess  are  equivalent  to  an  offer  of  pay- 
ment oil  his  part. 

Presentment  of  a  negotiable  instrument  for  payment,  when 
necessary,  must  be  made  as  follows,  as  nearly'  as  by  reasonable 
diligence  it  is  practicable: 

1.  The  instrument  must  be  presented  by  the  holder. 

2.  The  ^^"^vumeut  must  be  presented  to  the  principal  debtor, 
if  he  can  be  found  at  the  place  where  presentment  should  be 
made;  and  if  not,  then  it  m.v"u  be  presented  to  some  other  per- 
son having  charge  thereof,  or  employed  therein,  if  one  can  be 
found  there. 

3.  An  instrument  which  specifies  a  place  for  its  payment  m^ast 
be  presented   there;  and  if  the  place   specified   includes  more 


120 


CAIilFOBNI^. 


[Part  3. 


than  one  house,  then  at  the  place  of  residence  or  business  of  the 
principal  debtor,  if  it  can  be  found  therein. 

4.  An  instrument  which  does  not  specify  a  place  for  its  pay- 
ment must  be  presented  at  the  place  of  residence  or  business  of 
the  principal  debtor,  or  wherever  he  may  be  found,  at  the  option 
of  the  presentor;  and 

5.  The  instrument  must  be  presented  upon  the  day  of  its 
maturity,  or  if  it  be  payable  on  demand,  it  may  be  presented  on 
any  day.  It  must  be  presented  within  reasonable  hours;  and  if 
it  be  payable  at  a  banking  house,  within  the  usual  banking 
hours  of  the  vicinity;  but  by  the  concent  of  the  person  to  whom 
it  should  be  presented,  it  may  be  presented  at  any  hour  of  the 
day. 

6.  If  the  principal  debtor  have  no  place  of  business,  or  if  his 
place  of  business  or  residence  cannot,  with  reasonable  diligence, 
be  ascertained,  presentment  for  payment  is  excused. 

The  apparent  maturity  of  a  negotiable  instrument,  payable  at 
a  particular  time,  is  the  day  on  which,  by  its  terms,  it  becomes 
due,  or  when  that  is  a  holiday,  the  next  busi?aess  day. 

A  bill  of  exchange,  payable  at  a  certain  time  after  sight,  which 
is  not  accepted  within  ten  days  after  its  date,  in  addition  to  the 
time  which  would  sufl&ce,  with  ordinary  diligence,  to  forward  it 
for  acceptance,  is  presumed  to  have  been  dishonored. 

The  apparent  maturity  of  a  bill  of  exchange,  payable  at  sight 
or  on  demand,  is  : 

1.  If  it  bears  interest,  one  year  after  its  date  ;  or, 

2.  If  it  does  not  bear  interest,  ten  days  after  its  date,  in  addi- 
tion to  the  time  which  would  suffice,  with  ordinary  diligence,  to 
forward  ii  for  acceptance. 

The  apparent  maturity  of  a  promissory  note,  payable  at  sight 
or  on  demand,  is  :  • 

1.  If  it  bears  interest,  one  year  after  its  date  ;  or, 

2.  If  it  does  not  bear  interest,  six  months  after  its  date. 
When  a  promissory  note  is  payable  at  a  certain  time  after 

sight  or  demand,  such  time  is  to  be  added  to  the  period  above 
mentioned. 

A  negotiable  instrument  is  dishonered  when  it  is  either  not 
paid  or  not  accepted,  according  to  its  tenor,  on  presentation  for 
the  purpose,  or  without  presentation  when  that  is  excused. 


Chap.  39.] 


CAUFOENU. 


121 


to 


ter 
|ve 


Lot 
lot 


Notice  of  the  dishor  of  a  negotiable  instrument  may  be  given  : 

1.  By  a  holder  thereof  ;  or, 

2.  By  any  party  to  the  instrument  who  mi('ht  be  compelled  to 
pay  it  to  the  holder,  and  who  would,  upon  taking  it  up,  have  a 
right  to  reimbursement  from  the  party  to  whom  the  notice  is 
given. 

A  notice  of  dishonor  may  be  given  in  any  form  which'describes 
the  instrument  with  reasonable  certainty,  and  substantially  in- 
forms the  party  receiving  it  that  the  instrument  has  been  dis- 
honored. 

A  notice  of  dishonor  may  be  given  : 

1.  By  delivering  it  to  the  j^arty  to  be  charged,  personally,  at 
any  place  ;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the  place 
of  residence  or  business  of  such  party,  apparently  acting  for 
him ;  or, 

8  By  properly  folding  the  notice,  directing  it  to  the  party  to 
be  charged,  at  his  place  of  residence,  according  to  the  best  in- 
formation that  the  person  giving  the  notice  can  obtain,  deposit- 
ing it  in  the  post  oflS,ce  most  conveniently  accessible  from  the  place 
where  the  presentment  was  made,  and  paying  the  postage  thereon. 

In  case  of  the  death  of  a  party  to  whom  notice  of  dishonor  should 
otherwise  be  given,  the  notice  must  be  given  to  one  of  his  personal 
representatives;  or  if  there  are  none,  then  to  any  member  of 
his  family  who  resided  with  him  at  his  death;  or  if  there  is  none, 
then  it  must  be  mailed  to  his  last  place  oi  residence. 

A  notice  of  dishonor  given  otherwise  than  by  mail  must  be 
given  on  the  day  of  dishonor,  or  on  the  next  business  day. 
When  given  by  mail,  it  must  be  deposited  in  the  post  office  in 
time  for  the  first  mail  which  closes  after  noon  of  the  first  busi- 
ness day  succeeding  the  dishonor,  and  which  leaves  the  place 
where  the  instrument  was  dishonored  for  the  place  to  which  the 
notice  should  be  sent. 

Every  party  to  a  negotiable  instrument,  receiving  notice  of  its 
dishonor,  has  the  like  time  thereafter  to  give  similar  notice  to 
prior  parties  as  the  original  holder  had  after  its  dishonor.  But 
this  additional  time  is  available  only  to  the  particular  party  en- 
titled thereto. 


122 


CAIilPORNIA. 


[Part  3. 


>i:\ 


A  notice  of  the  dishonor  of  a  negotiable  instrument,  if  valid 
in  fayor  of  the  party  giving)  it,  inures  to  the  benefit  of  all  other 
parties  thereto  whose  right  to  give  the  like  notice  has  not  then 
been  lost. 

Notice  of  dishonor  is  excused : 

1.  "When  the  party  by  whom  it  should  b*  given  cannot,  with 
reasonable  diligence,  ascertain  either  the  place  of  residence  or 
business  of  the  party  to  be  charged;  or, 

2.  When  there  is  no  post  office  communication  between  the 
town  of  the  party  by  whom  the  notice  should  be  given,  and  the 
town  in  which  the  place  of  residence  or  business  of  the  party  to 
be  charged  is  situated;  or, 

3.  When  the  party  to  be  charged  is  the  same  person  who  dis- 
honors the  instrument;  or, 

4.  When  the  netice  is  waived  by  the  party  entitled  thereto. 

Presentment  and  notice  are  excused  as  to  any  party  who  in- 
forms the  holder,  within  ten  days  before  maturity,  that  the  in- 
strument will  be  dishonored. 

If  before  or  after  the  maturity  of  an  instrument  an  indorser 
has  received  full  security  for  the  amount  thereof,  or  the  maker 
has  assigned  all  his  estate  to  him  as  such  security,  presentment 
and  notice  to  him  are  excused. 

Delay  in  presentment,  or  in  giving  notice  of  dishonor,  is  excused 
when  caused  by  circumstances  which  the  party  delaying  could 
not  have  avoided  by  the  exercise  of  reasonable  care  and  dili- 
gence. 

A  waiver  of  presentment  waives  notice  of  dishonor  also;  but 
a  waiver  of  notice  does  not  waive  presentment. 

A  waiver  of  protest  on  any  negotiable  instrument,  other  than 
a  foreign  bill  of  exchange,  waives  presentment  and  notice. 


Chap.  40.] 


OALIFOBNIA. 


123 


CHAPTER  XL. 
PiirNCIPAL  AND  AGENT. 

An  agent  is  one  who  represents  another,  called  the  principal, 
in  dealings  with  third  persons. 

Any  person  having  capacity  to  contract  may  appoint  an  agent, 
and  any  person  may  be  an  agent. 

An  agent  for  a  particular  act  or  transaction  is  called  a  special 
agent.     All  others  are  general  agents. 

An  agent,  unless  specially  forb?  ^den  by  his  principal  to  do  so, 
can  delegate  his  powers  to  another  person  in  any  of  the  follow- 
ing cases,  and  in  no  others: 

1.  When  the  act  to  be  done  is  purely  mechanical. 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the  sub- 
agent  can,  lawftilly  perform. 

3.  When  it  is  the  usage  of  the  place  to  delegate  such  powers. 

4.  When  such  delegation  is  specially  authorized  by  the  prin- 
cipal. 

If  an  agent  employs  a  sub  agent  without  authority,  the  former 
is  a  principal  and  the  latter  his  agent,  and  the  principal  of  the 
foimer  has  no  connection  with  the  latter. 

A  sub-agent,  lawfully  appointed,  represents  the  principal  in 
like  manner  with  the  original  agent;  and  the  original  agent  is 
not  responsible  to  third  persons  for  the  acts  of  the  sub-agent. 


124 


CALirOBNIA. 


[Part  3. 


CHAPTER  XLL 
FRAUDULENT  INSTRUMENTS  AND  TRANSFERS. 

Every  transfer  of  property  or  change  thereon  made,  every 
obligation  incuiTed,  and  every  judicial  proceeding  taken,  with 
intent  to  delay  or  defraud  any  creditor  or  other  person  of  his 
demands,  is  void  against  all  creditors  of  the  debtor  and  their 
successors  in  interest,  and  against  any  person  upon  whom  the 
estate  of  the  debtor  devolves,  in  trust  for  the  benefit  of  others 
than  the  debtor. 

Every  transfer  of  personal  property  (other  than  a  thing  in 
action,  or  a  ship  or  cargo  at  sea,  or  in  a  foreign  port,  and  every 
lien  thereon,  other  than  a  mortgage,  when  allowed  by  law  and  a 
contract  of  bottomry  or  respondentia,)  is  conclusively  presumed 
if  made  by  a  person  having  at  the  time  the  possession  or  control 
of  the  property,  and  not  accompanied  by  an  immediate  delivery, 
and  followed  by  an  actual  and  continued  change  of  possession 
of  the  things  transferred,  to  be  fraudulent,  and  therefore  void, 
against  those  who  are  his  creditors  while  he  remains  in  posses- 
sion, and  the  successors  in  interest  of  such  creditors,  and  against 
any  persons  on  whom  the  estate  devolves  in  trust  for  the  benefit 
of  others  than  himself,  and  against  purchasers  or  incumbrancers 
in  good  faith  subsequent  to  the  transfer. 


CHAPTER  XLH. 


ASSIGNMENTS    FOR   THE   BENEFIT   OF   CREDITORS. 


An  insolvent  debtor  may,  in  good  faith,  execute  an  assign- 
ment of  property  to  one  or  more  assignees,  in  trust  for  the  sat- 
isfaction of  his  creditors. 


Chap.  42.] 


CALIFORNIA. 


> 


125 


An  aBsignment  for  the  benefit  of  creditors  is  void  against  any 
creditor  of  the  assignor,  not  assenting  thereto,  in  the  following 
cases:  *» 

1.  If  it  give  a  preference  of  one  debt,  or  class  of  debts,  ovejj*-  '  > 
another. 

2.  If  it  tend  to  coerce  any  creditor  to  release  or  compromise 
his  demands. 

3.  If  it  provide  for  the  payment  of  any  claim  known  to  the 
assignor  to  be  false  or  fraudulent,  or  for  the  payment  of  more 
upon  any  claim  than  is  known  to  be  justly  due  from  the  as- 
signor. 

4.  If  it  reserve  any  interest  in  the  assigned  property,  or  in 
any  part  thereof,  to  the  assignor,  or  for  his  benefit,  before  all 
his  existing  debts  are  paid. 

5.  If  it  confer  upon  the  assignee  any  power  which,  if  exer- 
cised, might  prevent  or  delay  the  immediate  conversion  of  the 
assigned  property  to  the  purposes  of  the  trust. 

6.  If  it  exempt  him  from  liability  for  neglect  of  duty  or  mis- 
conduct. 

The  assignment  must  be  in  writing,  signed,  duly  acknow- 
ledged and  recorded. 

Within  twenty  days  after  an  assignment  is  made,  an  inventory 
must  be  filed  with  the  county  recorder,  duly  sworn  to. 

Within  thirty  days  after  the  date  of  an  assignment,  the  as- 
signee must  enter  into  a  bond  for  the  faithful  discharge  of  the 
trust,  in  a  sum  to  be  fixed  by  the  county  judge. 

Property  exempt  from  execution,  and  insurance  upon  the  life 
of  the  assignor,  do  not  pass  to  the  assignee  unless  specially 
mentior'^d  in  the  assignment. 

An  assignment  executed  and  recorded  cannot  afterwards  be 
cancelled  or  modified  by  the  parties  thereto,  without  the  consent 
of  every  creditor  affected  thereby. 


1^6 


CALIFORNIA. 


[Part  3. 


CHAPTER    XLIII. 


INSOLVENCY. 


VoLimTARY  Proceedings — Entitled  to  Discharge. 

Every  insolvent  debtor  may  be  discharged  from  his  debts  as 
hereinafter  provided,  upon  executing  an  assignment  of  all  his 
property,  real,  personal  or  mixed,  for  the  benefit  of  all  his 
creditors,  and  upon  compliance  with  the  several  provisions  of 
the  act;  provided,  said  assignment  be  made  bona  fide  and  with- 
out fraud. 

Petition. 

Such  insolvent  debtor  shall  petition  the  county  judge  within 
the  place  of  his  domicile,  or  usual  residence,  which  petition  shall 
briefly  state  the  circumstances  which  compel  him  to  surrender 
his  property  to  his  creditors,  and  shall  conclude  with  a  prayer  to 
make  a  cession  of  his  estate,  and  to  be  discharged  from  his  debts, 
in  pursuance  of  the  provisions  of  the  act ;  provided  such  insol- 
vent debtor  shall  have  resided  within  the  county  where  he  files 
his  petition,  for  at  least  tix  months  next  preceding  the  filing  of 
the  same. 

Schedule. 

The  debtor  shall  annex  to  said  petition  his  schedule ;  that  is 
to  say,  a  summary  statement  of  his  affairs,  with  a  list  of  losses 
he  may  have  sustained,  giving  the  names  of  his  creditors,  if 
known ;  the  amount  due  to  each  creditor,  and  the  cause  and 
nature  of  said  indebtedness,  and  when  it  accrued,  aud  a  state- 
ment of  any  existing  judgment,  mortgage,  collateral  or  other 
securities  for  the  payment  of  any  such  debt ;  said  schedule  shall 
also  contain  a  full,  complete,  and  perfect  inventory  of  all  his 
property,  real,  personal  and  mixed,  of  all  choees  in  action,  debts 
due,  or  to  become  due,  and  all  moneys  on  hand  of  such  insol- 
vent ;  said  schedule  shall  also  contain  a  full  statement  of  all 
incumbrances  existing  upon   the    property  of    the  insolvent. 


Chap.  43.] 


CALIFORNIA. 


127 


The  said  debtor  shall  as  nearly  as  possible  estimate  the  property 
by  him  surrendered  and  set  forth  in  the  schedule,  at  its  tnie 
cash  value. 

Oath  to  Schedule. 

The  said  schedule  shall  be  signed  by  the  debtor,  and  by  him 
sworn  to  before  the  judge  having  jurisdiction  of  the  failure,  in 
the  following  words,  to  wit:  "  I,  (A  B),  do  in  the  presence  of 
Almighty  God  truly  and  solemnly  swear,  that  the  schedule  now 
delivered  by  me,  doth  contain  a  full,  perfect  and  true  discovery 
of  all  the  estate,  real,  personal,  and  mixed  goods  and  effects,  to 
me  in  any  way  belonging;  all  such  debts  as  are  to  me  owing,  or 
to  any  person  or  persons  in  trust  for  me,  and  all  securities  and 
contracts  whereby  any  money  may  hereafter  become  payable,  or 
any  benefit  or  advantage  accrue  to  me,  or  to  my  use,  or  to  any 
other  person  or  persons  in  trust  for  me;  that  I  have  no  lands, 
money,  stock  or  estate,  reversion  or  expectancy,  besides  that  set 
forth  in  my  schedule;  that  I  have  in  no  instance,  created  or  ac- 
knowledged a  debt  for  a  greater  sum  than  I  honestly  and  truly 
owed;  that  I  have  not  directly  of  indirectly  sold,  or  otherwise 
disposed  of  in  trust,  or  concealed,  any  part  of  my  property,  ef- 
fects or  contracts;  that  I  have  not  in  any  way  compounded  with 
my  creditors  whereby  to  secure  the  same,  or  to  receive  or  to  ex- 
pect any  profit  or  advantage  therefrom,  or  to  defraud,  or  deceive 
any  creditor  to  whom  I  am  indebted,  in  any  manner  whatever,. 
BO  help  me  God."  ' 

Oeder  to  Show  Cause. 

The  judge  receiving  such  petition,  schedule  and  affidavit, 
shall  make  an  order  requiring  all  the  creditors  of  such  insolvent 
to  show  cause,  if  they  can,  why  an  assignment  of  the  insolvent 
estate  should  not  be  made,  and  he  be  discharged  from  his  debts. 
Said  schedule  being  signed  and  sworn  to  by  the  petitioner,  the 
judge  shall  certify  the  same,  and  cause  it  to  be  filed  in  the  office 
of  the  clerk  of  the  court  in  the  county  where  the  assignment 
was  made,  there  to  remain  for  the  information  of  the  creditors. 

Homestead. 

The  insolvent  debtor,  on  a  surrender  of  his  property,  shall 
include  and  set  forth  in  his  schedule,  his  whole  estate,  including 


128 


OALIFOBMIA. 


[Part  3. 


the  homestead,  if  any  he  has,  and  all  such  property  as  may  be 
by  law  exempt  on  execution  from  seizure  and  forced  sale,  and 
it  shall  be  the  duty  of  the  judge  having  jurisdiction  of  the  fail- 
ure, to  exempt  and  set  apart  for  the  use  and  benefit  of  said  in- 
solvent, such  real  and  personal  property  as  he  is  by  law  author- 
ized to  retain  to  his  own  use,  or  that  of  his  family. 


Books. 

Thft  insolvent  shall,  either  before  or  on  the  day  appointed  for 
the  meeting  of  the  creditors,  deliver  to  the  court  all  the  com- 
mercial or  other  books  he  may  have  kept,  which  books  shall  be 
deposited  in  the  clerk's  office  of  said  court.  Said  insolvent 
shall  also  deliver  to  the  court  at  the  same  time,  all  vouchers, 
notes,  bonds,  bills,  securities,  or  other  evidence  of  debt,  in  any 
manner  relating  to,,  or  having  any  bearing  upon  or  connection 
with  the  property  surrendered  by  said  debtor,  and  all  such 
papers  or  secv.ities  shall  be  deposited  in  the  clerk's  office  of 
said  court,  and  the  clerk  shall  hand  them  over,  together  with 
the  books  of  the  insolvent  to  the  assignees,  who  may  be  ap- 
pointed. 

Notice  to  Creditors. 

The  judge  granting  the  order  for  a  meeting  of  the  creditors, 
shall  direct  the  clerk  of  the  court  to  issue  a  notice  calling  the  cred- 
itors of  the  insolvent  to  be  and  appear  upon  a  specified  day,  not 
less  than  thirty  nor  more  than  forty  days  from  the  first  publica- 
tion of  such  notice,  before  said  judge,  either  in  chambers  or 
in  open  court,  as  said  judge  shall  order,  to  show  cause  why  the 
prayer  of  the  alleged  insolvent  should  not  be  granted.  Said 
notice  shall  be  published  at  least  once  a  week  for  four  successive 
weeks  in  a  newspaper  printed  in  the  county  in  which  the  appli- 
cation is  made,  if  there  is  one  ;  if  there  be  none  so  published, 
then  in  a  newspaper  j)ublished  in  any  county  adjoining  said 
county. 

Stay  of   Proceedings. 

When  issuing  the  order  for  the  meeting  of  creditors,  the  judge 
shall  order  that  all  proceedings  against  the  debtor  be  stayed  ; 
provided,  however,  that  the  said  stay  of  proceedings  shall  not 


Chap.  36.1 


CALIFORNIA. 


129 


prevent  the  judge  who  shall  have  granted  it,  from  appointing  a 
receiver  to  lake  possession  of  all  property  of  the  debtor,  for  the 
benefit  of  all  his  creditors,  if  one  or  more  of  his  creditors,  his 
agent,  or  attorney  in  fact  shall  apply  for  such  appointment,  and 
swear  that  he  has  reason  to  believe,  and  does  believe,  that  the 
debtor  may  avail  himself  of  the  stay  of  proceedings,  and  keep 
his  property  from  his  creditors,  if  no  cause  sufficient  in  the 
judgment  of  the  Court,  shall  have  been  shown,  why  the  debtor 
should  not  have  the  benefit  of  this  act,  and  shall  produce  satis- 
factory proof  of  the  facts  on  which  his  affidavit  is  founded. 

Meeting  of  Creditors  to  Appoint  Assignees. 

At  the  meeting  of  creditors,  the  said  creditors  after  having 
certified  on  oath,  that  their  respective  claims  are  legitimate  and 
true,  shall  proceed  to  the  appointment  of  one  or  more  assignees, 
not  exceeding  three ;  in  appointing  assignees,  the  opinion  of 
the  majority  of  said  creditors,  in  sums  or  in  claims,  shall 
prevail.  At  such  meeting  any  creditor  may  be  represented 
by  his  duly  authorized  agent,  or  attorney  in  fact. 

Assignees — Their  Duty,  Etc. 

When  the  assignee  or  assignees  shall  have  been  duly  appointed 
at  the  meeting  of  creditors,  and  the  surrender  of  the  propeity 
shall  have  been  duly  accepted  of,  it  shall  be  the  duty  of  said  as- 
signees to  deposit  in  the  clerk's  office  of  the  court  who  shall 
have  issued  the  order  for  a  call  of  the  creditors,  a  certified  state- 
ment of  the  deliberations  of  said  creditors,  on  the  appointment 
of  the  said  assignees. 

The  judge  shall  require  from  the  assignees  a  bond  with  one  or 
more  good  and  sufficient  securities,  on  which  bond  the  parties 
therein  shall  be  liable,  jointly  a) id  severally,  for  the  amount 
thereof,  conditioned  for  the  faithful  performance  of  the  duties 
devolving  upon  said  assignees.  The  amount  of  such  bond  shall 
be  determined  by  the  majority  of  creditor?;  should  not  the 
creditors  so  determine,  the  amount  of  said  bond  shall  be  fixed 
by  the  court  having  jurisdiction  of  the  failure. 

The  assignees  shall  apply  by  petition  to  the  court  who  shall 
have  ordered  a  meeting  of  creditors,  to  be  authorized  to  sell  at 


u 


130 


CALIFORNIA. 


[Part  3. 


public  auction  and  to  the  best  and  highest  bidder  for  cash,  all 
the  insolvent  debtor's  property  of  whatsoever  nature  or  kind ; 
and  said  assignees  shall  give  at  least  twenty  days'  public  notice, 
in  the  same  manner  as  notice  for  a  meeting  of  creditors,  of  all 
sales  of  the  property  of  said  insolvent,  giving  at  the  same  time 
a  full  description  of  the  property  to  be  disposed  of;  provided, 
however,  that  if  any  of  the  property  surrendered  be  of  a  perish- 
able nature,  the  assignees  shall  be  authorized  to  sell  the 
same,  on  giving  at  least  five  days'  notice  of  such  sale  by  publi- 
cation or  notice  of  such  sale  as  in  sale  on  execution. 

The  assignees  shall  deposit  all  funds  belonging  to  the  failure, 
in  their  joint  names,  bo  that  nothing  can  be  drawn  without  the 
consent  of  all.  Said  funds  shall  remain  inviolable,  and  shall 
never  be  loaned,  used  or  mixed  with  the  personal  affairs  of  the 
assignees;  and  finally,  the  said  assignees  shall  make  a  distribu- 
tion of  the  proceeds  of  the  property  of  the  insolvent,  agreeably 
to  the  dir3ction  of  the  court;  said  assignees  may  sue  and  be 
sued,  either  as  plaintiffs  or  defendants,  in  everything  which  re- 
spects the  rights  and  actions,  which  may  belong  to  the  insol- 
vent, or  which  may  concern  the  mass  of  the  creditors;  all  suits 
brought  against  the  insolvent  anterior  to  hir,  -nrrender  of  prop- 
erty, before  the  courts  of  other  counties,  siipll  be  transferred 
to  the  court  having  jurisdiction  in  the  cov  a+y  in  which  said  in- 
solvent shall  have  presented  his  schedule,  i*nd  may  be  continued 
on  motion  and  notice  against  his  assignees. 


Dividends. 

Whenever  a  dividend  shall  be  declared,  the  assignees  shall 
make  out  a  statement  containing  the  names  of  the  several 
creditors,  mentioning  the  sums  which  are  due  them  respectively; 
and  the  said  statement  shall  besides,  contain  the  pro  rata  sums 
to  be  divided  among  all  the  creditors.  Said  assignees  shall 
deposit  said  statement  in  the  clerk's  office  of  the  court,  who 
shall  order  that  notice  be  given  to  the  creditors  in  the  same 
manner  as  for  the  meeting,  that  they  show  cause  within  fifteen 
days  next  following  the  publication,  why  the  said  statement 
should  not  be  accepted,  and  the  distribution  made  agreeably  to 
its  contents. 


c 
e: 


Ohap.  43.] 


CALIFORNIA. 


131 


AcoouNTB  OF  Assignees. 

Two  or  more  creditors  may  at  any  time  make  a  motion  to  know 
if  the  assignees  have  funds  in  their  hands,  and  the  said  assignees 
shall  be  required  to  present  their  accounts,^  and  if  they  have 
funds  they  shall  distribute  them  wiiliout  delay. 

Discharge  of  Assignees. 

Should  the  assif^uees  refuse  or  neglect  to  render  their 
accounts  as  required  by  the  preceding  section,  or  to  pay  over  a 
dividend,  when  they  shall  have,  in  the  opinion  of  the  court, 
sufficient  funds  for  that  purpose  in  their  hands,  the  court  shall 
immediately  discharge  such  assignees  from  their  trust,  and  shall 
have  power  to  appoint  others  in  their  place.  The  assignees  ao 
discharged  shall  deliver  over  to  those  appointed  by  the  court, 
all  the  funds,  property,  books,  vouchers  and  securities  belonging 
to  the  insolvent,  without  charging  any  commission  or  expenses 
thereon,  and  shall  also  be  condemned  to  jDay  to  the  new  assign- 
ees, for  the  benefit  of  the  mass  of  the  creditors,  twenty  per  cent, 
in  addition  to  the  amount  of  funds  in  their  hands. 


Refusal  to  Appoint  Assignees. 

If,  on  the  day  ai^pointed  for  the  meeting,  the  creditors,  al- 
though duly  summoned,  do  not  attend,  or  refuse  to  appoint  one 
or  more  assignees,  it  shall  be  lawful  for  the  judge  before  whom 
the  said  meeting  may  take  place,  to  authorize  the  sheriff  oi  the 
county  to  receive  the  surrender  of  property  offered  by  the 
debtor,  and  to  perform  in  every  respect  the  functions  of  assignee, 
and  for  the  faithful  performance  of  said  trust,  he  shall  be  re- 
sponsible on  his  official  bond;  provided,  that  if  any  of  the 
creditors  should  choose  to  take  that  charge,  the  judge  shall  ap- 
point said  creditor  for  that  pui-pose,  upon  said  creditor  giving 
bond,  with  good  and  sufficient  security  proportioned  to  tlie 
value  of  the  property  committed  to  his  charge. 

Fees  op  Assignees. 

The  assignees,  collectively,  shall  be  entitled  to  charge  and  re- 
ceive for  their  services,  to  wit:  ten  per  centum  upon  a  sum  not 
exceeding  ten  thousand  dollars ;  eight  2>er  centum  upon  sums 


1 


!  i 


132 


CALirORNIA. 


[Part  3. 


above  ten  thousand  dollars,  and  not  exceeding  thirty  thousand 
dollars;  six  per  centum  upon  sums  above  thirty  thousand  dol- 
lars, and  not  exceeding  sixty  thousand  dollars,  and  four  per 
centum  on  all  sums  exceeding  sixty  thousand  dollars;  provided, 
that  the  said  commisions  shall  be  allowed  only  on  such  net  sums  of 
money  as  shall  actually  come  to  their  hands  or  be  distributed  by 
them.  The  mass  of  creditors  shall  in  no  manner  be  liable  for 
the  fees  of  counsel  of  the  insolvent  debtor  in  conducting  a  sur- 
render of  the  property. 

Fraud. 

That  ir.  case  after  the  appointment  of  said  assignees,  any  one 
or  more  of  the  creditors  of  the  insolvent  debtor  should  def  m 
necessary  to  oppose  it,  on  the  ground  of  some  fraud  having  been 
committed  by  the  said  insolvent  debtor,  or  of  the  appointment 
not  having  been  legally  made,  he  shall  within  ten  days  next  fol- 
lowing the  appointment  of  said  assignees,  lay  before  the  cour*. 
which  has  already  taken  cognizance  of  the  case,  his  ^ylitten 
opposition,  stating  specially  the  several  facts  of  nullity  of  the 
said  appointment,  or  of  fraud  by  him  alleged  agpinst  the  insol- 
vent debtor,  whereupon,  in  case  of  accusation  of  fraud,  after 
having  received  the  said  insolvent  debtor's  answer,  the  court 
shall  order  a  jury  to  be  summoned,  of  not  less  than  six  men,  to 
be  summoned  in  the  same  manner  as  juries  are  summoned  in  the 
District  Court,  for  the  purpose  of  deciding  on  the  said  accusation. 

On  the  day  or  at  the  term  appointed  in  such  order,  or  any 
subsequent  day  or  term,  the  court  shall  proceed  to  hear  the 
proofs  and  allegations  of  the  parties ;  and  before  any  other  pro- 
ceedings be  had,  shall  require  proof  of  the  publication  of  the 
notice  as  herein  provided. 

Upon  such  an  accut»ation  of  fraud,  the  creditor  who  shall  have 
brought  the  same,  shall  have  the  right  to  interrogate  the  insol- 
vent debtor  on  oath,  and  put  to  him  such  written  questions,  as 
to  the  state  of*  his  affairs,  and  the  several  transactions  in 
which  he  may  have  been  engaged  anterior  to  his  failure,  as  he 
shall  'hink  proper;  and  the  insolvent  shall  answer,  in  writing, 
to  the  said  interrogatories,  in  a  pertinent  and  distinct  manner; 
and  every  equivocal  answer  on  his  part  shall  be  construed 
against  him. 


Chap.  43.] 


CALIFORNIA. 


13S 


|ve 

5I- 

las 

in 

Ihe 

ked 


If  the  jury  summonuil  for  the  purjiose  of  deciding  on  the  ac- 
cusation of  fraud,  brought  against  such  insolvent  debtor,  declare 
in  their  verdict  that  said  insolvent  has  been  guilty  of  fraud,  the 
said  debtor  shall  forever  be  deprived  of  the  benefit  of  the  laws 
passed  for  the  relief  of  insolvent  debtors  in  this  State, 

If  the  accusation  of  fraud  brought  against  the  debtor  is  de- 
clared to  be  ill-founded,  or  if  there  be  no  oj^position  to  the  sur- 
render of  his  property,  and  provided  said  surrender  has  been 
made  according  to  the  provisions  of  this  act,  said  debtor  shall 
be  released  and  fully  discharged  from  any  and  all  debts  until 
then  contracted,  and  contracted  after  the  passage  of  this  act, 
and  from  every  judicial  proceeding  relative  to  the  same;  j)rovi- 
ded,  always,  that  the  release  and  discharge  authorized  by  this 
section  shall  not  apply  to  debts  and  liabilities  not  mentioned 
and  set  forth  in  the  schedule  unless  the  insolvent  shall  declare 
in  his  petition  that  it  is  his  desire  to  be  discharged  from  all  his 
debts  and  liabilities,  and  that  he  has  descr'l,ed  tliem  according 
to  the  best  of  his  knowledge  and  recollection;  in  which  case  the 
discharge  and  release  authorized  by  this  section  shall  embrace 
all  his  debts  and  liabilities,  notwithstanding  they  may  have  been 
imperfectly  described,  or  not  described  at  all. 

Any  insolvent  debtor  *ho  shall  be  found  guilty  of  fraud  as 
aforesaid,  shall  foi-ever  be  deemed  incapable  of  holding  any 
office  of  trust  or  profit  under  the  government  of  this  State; 
shall  moreover  be  liable  to  be  prosecuted  and  punished  as  a 
perjurer,  if  he  should  be  convicted  of  having  foi-esworn  himself 
in  any  of  tne  declarations  he  may  have  made  agreeably  to  the 
^/I'ovisions  of  this  act,  and  if  convicted  of  fraud  he  shall  be  sen- 
tenced by  the  court  to  suffer  imprisonment  at  hard  labor  in  the 
State  Prison,  for  a  tenn  not  less  than  six  months,  nor  more  than 
two  years. 

If  the  judge  before  whom  the  accusation  of  fraud  is  brought, 
or  an  opposition  to  the  appointment  of  ausigneea  is  made, 
thinks  that  the  interest  of  the  mass  of  creditors  of  the  insolvent 
may  suffer  by  a  delay  of  the  approval  of  the  appointment  of  the 
assignees,  it  shall  be  lawful  for  said  judge,  all  opposition  not- 
withstanding, to  approve  previously  the  said  appointment,  if  he 
finds  that  it  has  been  made  agreeably  to  law. 


I 


184 


CALIFORNIA. 


[Part  3. 


1 


That  all  persons  shall  be  considered  as  fraudulent  bankrupts, 
who  shall  be  convicted  of  having  concealed  their  property,  with 
the  intention  to  keep  it  from  their  creditors,  as  also  those  who 
shall  be  convicted  of  having  concealed  or  altered  their  books,  or 
papers,  with  the  same  intention. 

That  every  insolvent  debtor  shall  also  be  considered  as  a 
fraudulent  bankrupt  who  shall  be  convicted  of  having  passed 
sham  deeds  for  the  purpose  of  conveying  the  whole  or  anj'  part 
of  his  property  and  depriving  his  creditors  thereof,  or  of  having 
knowingly  omitted  to  declare  any  of  his  property,  rights,  or 
claims  in  his  schedule,  or  of  having  purloined  his  books,  or  anj- 
of  them,  or  of  having  altered,  changed,  or  made  them  anew,  to 
an  intent  to  defraud  his  creditors,  or  of  having  alienated,  mort- 
gaged or  pledged  any  of  his  property,  or  of  I'.aving  committed 
any  other  kind  of  fraud  to  the  prejudice  of  his  creditors. 

Certain  Debtors  Denied  the  Benefit  of  the  Act. 

If  any  debtor  shall  be  convicted  of  having  at  any  time  within 
three  months  next  preceding  his  failure,  sold,  engaged,  or  mort- 
gaged any  of  his.  goods  and  effects,  or  of  having  ot^.erwifie 
assigned,  transferred,  or  disposed  of  the  same,  or  any  pa)t 
thereof,  or  confessed  judgment  in  order  to  give  a  preference  to 
one  or  more  of  his  creditors  o\  or  the  others,  whereby  to  receive 
any  advantage  in  anticipations  of  his  failure,  to  the  prejudice  of 
his  creditors,  he  shall  be  debarred  the  benefit  of  this  act. 

All  insolvent  debtors  owing,  or  accountable  in  any  maimer  for 
public  funds  or  property  of  whatever  nature  or  kind;  all  un- 
faithful depositaries;  all  such  as  refuse  or  neglect  to  pay  up  all 
funds  received  by  them  as  bankers,  brokers,  commi'^sion  mer- 
chants, or  for  money,  goods,  or  eft'ects,  received  by  them  in  a 
fiduciary  capacity,  sliall  T)e  denied  tlie  benefit  of  this  act;  pro- 
vided, that  such  parties  may  avail  themselves  of  this  act  for  tlie 
puri)ose  of  procuring  an  equal  distribution  of  their  assets 
among  their  crerlitors,  and  for  tliat  purpose  only  said  act  aha.]! 
apply  to  estates  of  such  insolvents  in  tliis  section  men1  loned ; 
and  provided,  furtlier,  such  debtor  may  l^e  discharged  fiom  nil 
debts  not  named  in  this  section. 

If,  after  the  presentation  of  the  petition,  the  insoivent 
shall   sell,  or  in   any  manner    transfer   or  assign   any   of   his 


I 


Chap.  43.] 


CALIFORNIA. 


185 


I 


property,  or  collect  any  debts  due  him,  and  shall  not  give 
a  just  and  true  account  of  the  property  so  sold  or  transferred, 
and  the  moneys  so  collected,  rnd  pay  the  same  over  to  the 
assignees  within  ten  days  after  their  appointment,  said  debtor 
shall  not  receive  the  benefit  of  this  act. 

Concealing  Property. 

Whenener  any  insolvent  debtor  has  had  the  benefit  of  this  act, 
if  thereafter,  at  any  time  it  is  made  to  appear  that  he  has  con- 
cealed any  part  of  his  property  or  estate,  or  given  a  false 
schedule,  or  committed  any  fraud  under  the  provisions  of  this 
act,  it  is  hereby  declared  that  he  has  forfeited  all  benefit  and 
advantage  which  he  would  otherwise  have  had  by  virtue  of  this  act, 
and  he  cannot  avail  himself  of  any  of  its  provisions,  in  bar  to 
any  claim  that  may  be  instituted  against  him. 

Insolvent  to  Apply  in  Person. 

N  >  person  can  apply  for,  or  receive  the  benefit  of  this  act, 
ibroutrh  an  agent  or  attorney  in  fact. 


I 

u 


M; 
hi  I 

kit 
ms 


Surrender  or  Property. 

t*  :A>  n  id  after  the  surrender  of  the  property  of  the  insolvent 
debtor,  jJl  property  of  such  insolvent  shall  be  fully  vested  in 
his  assignee  or  assignees,  for  the  benefit  of  his  creditors,  and 
shall  not  be  liable  to  be  seized,  attached,  taken,  or  levied  on,  by 
virtue  of  auy  execution  issued  against  the  property  of  said  insol- 
vent, and  the  assignees,  who  may  be  appointed,  shall  take  pos- 
i^ession  of,  and  be  entitled  to  claim  and  recover  all  the  said 
;.  j'operty,  and  to  administer,  and  sell  the  same,  as  herein  pro- 


uk^'* 


Non-Resident  Creditors. 


If  there  be  any  creditors  residing  without  the  limits  of  this 
State,  the  judge  shall  appoint  an  attorney  to  represent  them  ;  but 
the  fees  of  said  attorney  shall  in  no  case  be  paid  by  the  mass  of  cred- 
itors, but  shall  be  levied  on  the  amount  of  the  sums  which  shall 
be  recovered  for  the  a('('f)unt  of  such  non-resident  creditors,  at 
the  rate  of  ten  per  centum;  provided,  that  in  no  cas?  shall  the 


■ 


s 


136 


CALIFORNIA. 


[Part  8. 


whole  fees  allowed  to  counsel,   appointed  on  behalf  of  said 
creditors,  exceed  the  sum  of  three  hundred  and  fifty  dollars. 

Where  Debtor  has  no  Property. 

In  case  the  debtor  who  c  '''  ^s  for  the  benefit  of  this  act, 
should  have  no  property  to  ii  .der  to  his  creditors,  or  if  the 
appraised  value  of  the  property  exhibited  in  his  schedule  should 
not  amount  to  more  than  one  third  of  his  debts,  in  case  he  should 
already  have  received  the  benefit  of  this  act,  during  the  year 
next  preceding,  the  judge  before  whom  application  is  made, 
shall  not  admit  him  to  the  benefit  of  this  law,  unlesa  it  be 
proven  to  the  said  judge,  by  affidavit,  sworn  and  subscribed  to 
by  two  credible  and  disinterested  witnesses,  that  the  debtor  has 
really  experienced  the  losses  by  him  stated,  and  that  the  said 
losses  may  have  reduced  him  to  the  situation  in  which  he  finds 
himself;  provided,  all  legal  mortgages  and  liens,  bona  fide  ex- 
isting on  such  property  at  the  time  of  the  surrender,  as  aforesaid, 
shall  remain  good  and  valid,  and  may  be  enforced  in  the  same 
manner  as  though  no  such  surrender  had  been  made. 

Assets  to  be  Delivered  to  Assignee. 

All  the  goods,  titles  and  claims  which  the  insolvent  debtor 
shall  have  declared  in  his  schedule,  shall  be  delivered  up  to  the 
assignees  as  soon  as  they  shall  have  been  appointed;  and  in  case 
the  debtor  should  refuse  to  deliver  up  the  goods,  titles,  eflfects, 
or  estates  in  his  possession,  the  judge  shall  oblige  to  thvat  deliv- 
ery, either  by  orderi  g  the  sheriff  to  seize  the  said  property,  to 
be  by  him  delivered  up  to  the  assignees,  or  causing  the  said  in- 
solvent to  be  imprisoned  until  the  said  delivery  shall  be  effected 

*  Assignees  to  Keep  an  Account. 

The  assignee  or  assignees  appointed  under  this  act,  shall 
make  out  a  true  account  of  all  disbursements  made  by  them  in 
discharge  of  their  duties  as  assignee  or  assignees,  which  shall 
be  verified  by  the  oath  of  such  assignee  or  assignees,  and  shall 
deliver  the  same  to  the  judge  having  jurisdiction  of  the  subject 
matter;  and   such  judge   shall   in  writing   certify  such  part  or 


Chap,  43.] 


OALIFORNIA. 


137 


parts  of  the  same  as  he  shall  deem  to  be  just  and  necessarily 
expended  by  said  assignee  or  assignees  in  the  discharge  of  their 
duty,  which  amount  so  allowed  shall  be  paid  out  of  the  pro- 
pel ty  of  such  insolvent  debtor. 


ill 
I  in 
ill 
ill 
pet 
or 


CHAPTER    XLIV. 

INSOLVENCY.       -,^.;,v..,.^^,'' .■ 
Involuntary  Proceedings.     ,  ^, 


■'■Wr:,'};:- 


'•'Ml    T,">'i' 


A  petition  may  be  filed  in  the  County  Court  of  the  county  in 
which  any  person  resides  or  has  his  place  of  business,  signed  by 
three  or  more  creditors  of  such  person,  and  verified  by  at  least 
two  of  such  signers,  setting  forth  that  such  person  is  indebted 
to  them  respectively,  in  amounts  which  must  be  stated  in  the 
petition,  and  that  such  person  is  about  to  depart  from  the  State 
wi()h  intent  to  defraud  his  creditors;  or,  being  absent  from  the 
State  with  such  intent,  remains  absent;  or  conceals  himself  to 
avoid  the  service  of  legal  process;  or  conceals,  or  is  removing 
any  of  his  property  to  avoid  its  being  attached  or  taken  on  legal 
process;  or  has  made  any  assignment,  gift,  sale,  conveyance,  or 
transfer  of  his  estate,  property,  rights,  or  credits,  with  intent  to 
delay,  defraud,  or  hinder  his  creditors;  or  has  been  arrested  and 
held  in  custody  by  virtue  of  any  civil  process  of  court,  founded 
on  any  debt  or  demand,  and  such  process  remains  of  force,  and 
not  discharged,  by  payment  or  otherwise,  for  a  period  of  twenty 
days;  or,  being  insolvent  or  in  contemplation  of  insolvency,  has 
made  any  payment,  gift,  grant,  sale,  conveyance  or  trans- 
fer of  money  or  other  property,  estate,  rights,  or  cred- 
its; or  has  confessed  judgment  or  suflfered  or  procured  his 
property  to  be  taken  on  legal  process,  with  intent  to  give 
a  preference  to  one  or  more  of  his  creditors,  or  with 
the  intent,  by  such  disposition  of  his  property,  to  delay, 
defraud,  or  hinder  his  creditors ;  or  has  fraudulently  stopped 


138 


CALIFORNU. 


[Pf-t  3. 


payment ;  or  has  stopped  or  suspended,  and  not  resumed  pay- 
ment within  a  period  of  forty  days,  of  any  commercial  paper 
made  or  passed  in  the  course  of  his  business  ;  or,  being  a  bank 
or  banker,  broker,  or  commission  merchant,  has  failed  for  forty 
days  to  pay  any  moneys  deposited  with  or  received  by  him,  for 
goods  or  other  effects,  in  a  fiduciary  capacity,  upon  demand  of 
payment  lawfully  made ;  or  that  the  property  of  such  person 
has  been  attached  by  a  creditor  or  creditors  other  than  such 
petitioners,  and  the  attachment  has  not  been  released  or  dis- 
solved within  two  months  thereafter.  The  Court  shall  thereupon 
issue  an  order  requiring  such  debtor  to  show  cause,  at  a  time 
und  place  to  be  fixed  by  said  Court,  why  he  should  not  be  ad- 
judged  an  insolvent  debtor,  and  the  surrender  of  his  estate  be 
made  for  the  benefit  of  his  creditors  in  the  manner  required  of 
insolvent  debtors.  No  creditors  must  sign  said  petition  whose 
debt  or  demand  is  less  than  two  hundred  and  fifty  dollars  in 
gold  coin  of  the  United  States. 

A  copy  of  said  petition,  with  a  certified  copy  of  the  order  to 
show,  cause,  shall  be  served  on  said  debtor  personally,  or  left  at 
his  last  or  usual  place  of  abode,  at  least  five  days  before  the 
time  fixed  for  the  hearing ;  or,  if  such  debtor  cannot  be  found 
or  his  place  of  residence  ascertained,  service  thereof  shall  be 
made  by  publication  in  such  manner  as  the  Court  may  direct. 

At  the  time  fixed  for  the  hearing,  or  such  other  time  as  it  may 
be  adjourned  to,  and  upon  proof  being  made  to  the  satisfaction  of 
the  Court  of  such  service  or  publication,  the  Court  shall  inquire  if 
the  facts  set  out  in  said  petition  are  true;  and  the  issues  raised 
thereon  may  be  tried,  with  or  without  a  jury,  as  may  be  agreed 
upon. 

If  the  debtor  shall  make  default,  or  if  it  shall  be  found  that 
the  facts  set  out  in  said  petition  are  true,  the  Court  shall  make 
an  order  adjudging  that  said  debtor  is,  and  was  at  the  time  of 
the  filing  of  said  petition,  insolvent  within  the  true  intent  and 
meaning  of  the  acts  to  which  this  is  supplemental,  and  shall  re- 
quire said  debtor,  within  such  time  as  may  be  required,  to  file  in 
said  court  a  statement  of  his  affairs  in  the  manner  and  mode  re- 
quired by  said  acts;  and  thereupon  all  proceedings  shall  be  had 
in  said  matter  in  the  same  manner  as  if  said  debtor  had  volun- 
tarily filed'his  petition. 


Chap.  36.) 


CALIFORNIA. 


139 


If  said  debtor  shall  fail  to  file  such  statement,  the  Court  shall 
have  the  power  to  punish  such  debtor  as  for  a  contempt,  and 
may  order  the  petitioning  creditors  to  make  such  statement. 

If  any  debtor  shall  be  adjudged  insolvent,  either  under  this 
act  or  the  acts  to  which  it  is  supplementary,  all  attachments  upon 
the  property  of  said  debtor  which  were  levied  at  any  time  within 
two  months  before  filing  the  petition  are  dissolved,  and  all  such 
property  shall  vest  in  the  manner  and  with  like  effect  as  pro- 
vided in  said  acts,  in  the  assignee  or  assignees  to  be  appointed  in 
such  cases. 

In  all  cases  under  the  act  the  Court  shall  allow  to  the  petition- 
ing creditors,  out  of  the  estate  of  the  debtor,  as  preferred  claim, 
all  costs  and  expenses  incurred  by  th?m  in  that  behalf;  provided, 
however,  if  on  the  hearing  it  shall  be  adjudged  that  the 
facts  set  out  in  the  petition  of  the  creditor  are  not  sustained, 
the  debtor  shall  recover  from  such  creditors  his  costs  incurred 
by  him,  to  be  recovered  in  the  same  manner  as  on  final  judg- 
ment in  civil  actions.  All  costs  and  expenses  incurred  by  an 
attaching  creditor  shall  be  provable  and  allowed  against  the 
estate  of  the  debtor. 

If  any  person,  being  insolvent,  or  in  contemplation  of  insolv- 
ency within  two  months  before  the  filing  of  a  petition  by  or 
against  him,  with  a  view  to  give  a  preference  to  any  creditor  or 
person  having  a  claim  against  him,  or  who  is  under  any  liability 
for  him,  procures  any  part  of  his  property  to  be  attached, 
sequesteied,  or  seized  on  execution,  or  makes  any  payment, 
pledge,  assignment,  transfer,  or  conveyance  of  any  part  of  his 
property,  either  directly  or  indirectly,  absolutely  or  condition- 
ally, the  person  receiving  such  payment,  pledge,  assignment, 
transfer,  or  conveyance,  or  to  be  benefitted  thereby,  or  by  such 
attachment,  having  reasonable  cause  to  believe  that  such  person 
is  insolvent,  and  that  such  attachment,  seiziire,  payment,  pledge, 


140 


GALIFOBNIA. 


[Part  3. 


conveyance,  transfer,  or  assignment  is  made  with  a  view  to  pre- 
vent his  property  from  coming  to  his  assignee  in  insolvency,  or 
to  prevent  the  same  from  being  distributed  ratably  among  his 
creditors,  or  to  defeat  the  object  of,  or  in  any  way  hinder,  im- 
pede, or  delay  the  operation  of,  or  to  evade  any  of  the  provi- 
sions of  this  act,  or  of  the  act  or  acts  to  which  this  act  is  sup- 
plemental, or  of  which  this  act  is  amendatory,  such  transfer, 
payment,  conveyance,  pledge,  or  assignment  is  void,  and  the 
assignee  may  recover  the  property,  or  the  value  thereof,  as 
assets  of  such  insolvent  debtor;  and  if  such  sale,  assignment, 
transfer,  or  conveyance  is  not  made  in  the  usual  and  ordinary 
course  of  business  of  the  debtor,  the  fact  shall  be  prima  facie 
evidence  of  fraud. 


PART  IV. 


STATE  OF  NEVADA. 


,,■■$■;,/,■ 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  BISHOP  &  SABIN, 
EUREKA,  EUKEKA  CO.,  NEV. 


CHAPTER  I. 
COURTS,    JURISDICTION,    AND    TERMS    OF    COURTS. 

United  States  Courts. 

United  States  Circuit  Court,  Ninth  Circuit ;  composed  of  the 
Districts  of  California,  Nevada  and  Oregon.  Judges — Stephen 
J.  Field,  Associate  Justice  U.  S.  Supreme  Court;  Lorenzo 
Sawyer,  Circuit  Judge,  of  San  Francisco,  California ;  District 
Judge,  E.  W.  Hillyer,  of  Carson  City,  Nevada.  U.  S.  Attorney, 
C.  S.  Varian,  Reno,  Nevada ;  Marshal,  Aug.  Ash,  Virginia  City  ; 
Clerk,  T.  J.  Edwards,  Carson  City. 

Terms  of  U.  S.  Circuit  Court — At  Carson  City,  third  Monday 
in  March,  auA.  first  Monday  in  November  of  each  year. 

Terms  of  U.  S.  District  Court — At  Carson  City,  first  Mondays 
in  February,  May  and  October. 

(For  the  jurisdiction  of  the  United  States  Courts,  see  Part  II.) 


142 


NEVADA. 


(Part  4. 


State  Courts. 

One  Supreme  Court,  and  nine  District  Courts. 

The  Supreme  Court  consist  of  three  judges.  The  oldest  in 
commission  acts  as  chief  justice.  Judge — Thomas  P.  Hawley, 
C.  J.;  Wm.  H.  Beatty  and  O.  R.  Leonard,  Associate  Justices. 
Clerk,  Charles  F.  Bicknall.     All  reside  at  Carson  City. 

Regular  Terms — First  Mondays  of  January,  April,  July,  and 
October. 

The  Supreme  Court  shall  have  appellate  jurisdiction  in  all 
cases  in  equity;  also  in  all  cases  at  law  in  which  is  involved  the 
title  or  right  of  possession  to,  or  the  possession  of,  real  estate  or 
mining  claims,  or  the  legality  of  any  tax,  impost,  assessment, 
toll,  or  municipal  fine,  or  in  which  the  demand,  (exclusive  of  in- 
terest) or  the  value  of  the  property  in  controversy,  exceeds  three 
hundred  dollars;  also  in  all  other  civil  cases  not  included  in  the 
general  subdivision  of  law  and  equity,  and  also  on  questions  of 
law  alone,  in  all  criminal  cases  in  which  the  offense  charged 
amounts  to  felony.  The  Court  shall  also  have  power  to  issue 
writs  of  mandamus,  certiorari,  prohibition,  quo  warranto  and 
habeas  corpus,  and  also  all  writs  necessary  or  proper  to  the  com- 
plete exercise  of  its  appellate  jurisdiction.  Each  of  the  justices 
shall  have  power  to  issue  writs  of  habeas  corpus  to  any  part  of 
the  State,  upon  petition  by,  or  on  behalf  of,  any  person  held  in 
actual  custody,  and  may  make  such  writs  returnable  before  him- 
self or  the  Supreme  Court,  or  before  any  District  Court  in  this 
State,  or  before  any  judge  of  said  Courts. 

District  Courts. 


Jurisdiction. — The  District  Courts  in  the  several  judicial  dis- 
tricts of  this  State  shall  have  original  jurisdiction  in  all  cases  in 
equity;  also  in  all  cases  at  law  which  involve  the  title  or  the  right 
of  possession  to,  or  the  possession  of,  real  property  or  mining 
claims,  or  the  legality  of  any  tax,  impost,  assessment,  toll,  or 
municipal  fine,  and  in  all  other  cases  in  which  the  demand,  (ex- 
clusive of  interest)  or  the  value  of  the  property  in  controversy, 


Chap.  l.J 


NEVADA. 


143 


exceeds  three  hundred  dollars;  also  in  all  cases  relating  to  the  es- 
tates of  deceased  persons,  and  the  persons  and  estates  of  minors  and 
insane  persons,  and  of  the  action  of  forcible  entry  and  unlawful 
detainer  ;  and  also  in  all  criminal  cases  not  otherwise  provided 
for  by  law.  They  shall  also  have  final  appellate  jurisdiction  in 
cases  arising  in  Justice's  Courts,  and  such  other  inferior  tribunals 
as  may  be  established  by  law.  The  District  Courts,  ".iid  the 
judges  thereof,  shall  have  power  to  issue  writs  of  mandamus, 
injunction,  quo  warranto,  certiorari,  and  all  other  writs  proper 
and  necessary  to  the  complete  exercise  of  their  jurisdiction ;  and 
also  have  power  to  issue  \^  rits  of  habeas  corpus,  on  petition  by, 
or  on  behalf  of,  any  person  held  in  custody  in  their  respective 
districts. 

Times  for  Holding  District  Courts  for  1878. 


COLNTY. 

COLNTV   8KAT. 

1)I8T. 
Ist .  .  . 

WHKN  HELD.                               ,    , 

Storey 

Virginia  City 

First  Monday  of  January,  March,  June,  and  October. 

Ormsby 

Carson 

2d.... 

First  Monday  of  February,  June,  and  November. 

VVa'.!ilioe 

Heno ••. 

2d.... 

First  Monday  of  January,  March,  June,  and  October. 
First  Monday  of  Shiy  and  December.                       „ 

Oo'iglas 

Uenoa 

2d.... 

Ljon 

Dayton 

3d.... 

First  Monday  of  February,  May,  August  and  Nove'ber. 

Huuiboldt  .. 

Winnemucca 

4th... 

First  Monday  of  January,  Ajiril,  July,  and  Octet;.  • 

Churchill... 

Stillwater 

5th  ... 

First  Monday  of  May  and  December. 

Lander 

Austin 

5th  . . 

First  Monday  of  January,  June,  and  October. 
First  Monday  of  March  August  and  November. 

Nve 

Belmont 

Eureka 

5th... 
Cth.  . 

Kureku    . .  ■  • 

First  Monday  of  March,  July,  and  November. 
First  Monday  of  January,  May,  and  September. 
First  Monday  of  January,  April,  July  and  October. 
First  Monday  of  June  and  December. 
First  Monday  of  February,  June,  and  October. 

White  Pino.. 

Hamilton 

6th... 

Liinuolii 

Pioche 

7th  .. . 

Aurora 

8th... 

Blko 

Elko 

9th .. . 

•t; 


i 


lU 


NEVADA. 


[Part  4, 


Terms  of  Court  After  First  Monday  in  January,  1879. 


No.  OF  DiST. 

COUNTIBS    COMPOBINO  DiHT. 

Tkrms  Commrnck. 

Ist  Dist     . . . 

8torev  Countv 

lat  .Monday  in  January,  March,  June  and  October. 

'MDist 

Wa8h«>e,  Ormiby  and  Douipr- 

In  Washoo  County: 
Ist  Monday,  January,  Aiiril  und  September. 

In  Orinsby  County: 
lat  Monday,  March,  June  and  November. 

In  Dmiiflas  County: 
Ist  Monday,  May  und  December. 

3il  Dist 

Lyoii  and  Esmeralda 

In  Lyon  County: 
l8t  Monday,  February,  July  and  December. 

In  Esmeralda: 
1st  Monday,  May  and  October. 

4th  Dist 

2d  Monday,  February,  June  and  October. 

5th  Dial.... 

Lander,  Nye  and  Churchill . . 

In  Lander  County: 
Ist  Monday,  January,  June  and  October. 

Nye: 
Ist  Monday,  March,  Aufjust  and  November. 

Churchill: 
1st  Monday  May  and  December. 

6th  Dlst.... 

Eureka,  White  Pino  and  Lin- 
colli 

In  Eureka  County: 
lat  Monday  February,  June  and  September. 

In  Wh  te  Pine  County: 
Isi  Monday  in  April  and  November. 

In  Lincoln  County: 
1st  Monday  January  and  August. 

7th  Dist. . . . 

1 
Elko  County 

3d  Monday  in  February  June  and  October. 

I 
.  I 

I  I 


Justices*  Courts. 

Justices  of  the  Peace  have  jurisdiction  in  all  civil  cases  when  the 
demand,  (exclusive  of  interest)  does  not  exceed  three  hundred 
dollars.     Are  always  open. 


Chap.  2.] 


NEVADA. 


145 


CHAPTER  II. 

TIME  ALLOWED  TO  ANSWER— SERVICE   BY   PUBLI- 
CATION—PLACE  OF  TRIAL. 

Defendant  has  ten  days  to  answer  summons,  exclusive  of  day 
of  service,  from  date  of  service,  when  served  within  the  county, 
twenty  days  when  served  in  the"  district  but  i  anotlier  county 
than  the  one  where  the  action  was  commenced,  and  in  all  other 
cases  forty  days,  when  personal  service  is  had. 

Service  by  publication  may  be  had  on  defendant,  upon  filing 
of  proper  affidavit  therefor.  Summons  to  be  published  once  a 
week  for  at  least  one  month,  against  defendants  residing  in  the 
States  of  California  or  Oregon,  and  the  Temtories  of  Utah  and 
Washington;  in  all  other  cases  the  publication  of  summons  to 
be  for  not  less  than  three  months. 


Place  of  Trial.  •       ' 

All  actions  pertaining  to  real  estate,  or  to  the  recovery  thereof, 
or  any  interest  therein,  must  be  commenced  in  the  county 
wherein  the  real  estate  is  situated.  Transitory  actions  follow 
the  person.  ;  ;p  ■• 

Provisions  in  Justices'  Courts.  •      ,       x 

Defendant  must  be  sued  in  the  township  in  which  he  lives, 
unless  he  is  served  with  summons  in  the  county-seat,  or  has 
contracted  to  perform  an  obligation  at  a  particular  place;  in 
which  case  he  may  be  sued  in  the  township,  city,  or  precinct 
where  such  obligation  is  to  be  performed,  or  in  the  township  in 
which  he  resides.  Service  must  be  made  from  one  to  ten  days 
before  return  dav  of  summons.  .  .  '  ^ 


'  f 


II 


'  i   ' ' 


346 


NEVADA. 


[Part  4. 


<^;HAPTJiR    III. 


LIMITATION  OF  ACTIONS. 


1^ 


1 1'  I 


Civil  actions,  except  for  recovery  of  real  property,  can  only 
be  commenced  as  follows: 

Within  Six  Years — 1.  Upon  a  judgment  or  decree  of  any 
Court  of  the  United  States,  or  of  any  State  or  Tenitory  within 
the  United  States. 

2.  Upon  a  contract,  obligation,  or  liability  founded  upon  a 
written  instrument. 

Within  Four  Years. — 1.  An  action  on  an  open  account,  for 
goods,  wares,  and  merchandise  sold  and  delivered. 

2.  An  action  for  any  article  charged  in  a  store  account,  time 
to  date  from  date  of  last  charge,  or  date  of  last  credit. 

3.  An  action  upon  a  contract,  obligation,  or  liability,  not 
founded  upon  an  instrument  in  writing. 

Within  Three  Years — Upon  a  liability  created  by  statute, 
other  than  a  penalty  or  forfeiture;  for  trespass  upon  real  prop- 
erty; for  taking,  detaining,  or  injuring  any  goods  or  chattels; 
including  actions  for  the  specific  recoverj'^  of  personal  property; 
for  relief  on  the  grourd  of  fraud;  the  cause  of  action  not 
deemed  to  have  accrued  until  discovery  by  party  aggiieved  of 
facts  constituting  a  fraud. 

Within  Two  Years. — Against  a  sheriff,  coroner,  or  constable, 
upon  the  liability  incurred  by  the  doing  of  an  act  in  his  official 
capacity  and  in  virtue  of  his  office,  or  an  omission  of  an  official 
duty,  including  non-payment  of  monej  collected  upon  cxe^^u- 
tion.  Upon  statute  for  a  penalty  or  forfeiture  where  the  action 
is  given  to  an  individual,  or  to  an  individual  and  the  State,  ex- 
cept when  the  statute  imposing  it  fixes  a  different  limitation. 
For  libel,  slander,  assault,  battei'y,  or  false  imprisonment. 
Upon  statute  for  forfeiture  or  penalty  to  the  State.  Against  a 
sheriff  or  other  officer,  for  escape  of  a  prisoner  arrested  or  im- 
prisoned on  civil  process.     In  case  of   mutual  accounts,  the 


Cfcag.  3. 


NEVADA. 


147 


statute  begins  to  run  from  date  of  last  entry  in  account  of  either 
party. 

In  all  other  cases,  within  four  years  after  cause  of  action 
accrued. 

Contracts  entered  into  prior  to  March  2,  1877,  are  controlled 
by  the  provisions  of  the  act  of  1867,  which  provides  that  actions 
must  be  commenced : 

Within  Five  Years. — Upon  a  judgment  or  decree  of  any 
Court  of  the  United  States,  or  of  any  State  or  Territory  within 
the  United  States. 

Within  Four  Years. — Upon  ar.y  contract,  obligation,  or  lia- 
bility, founded  upon  an  instrument  in  writing. 
Within  Three  Years As  abuve  stated. 

Within  Two  Years. — As  iibove,  and  actions  on  an  open  ac- 
count for  goods,  wares,  and  merehandise  sold  and  delivered. 
Also  an  action  for  any  article  charged  in  a  store  account. 


iute, 
irop- 

Itels; 

3rty; 

not 

Id  of 


ible, 
icial 
icial 
kecu- 
jtiou 
ex- 
lition. 
lent. 


im- 
the 


General  Provisions.  ' 

Limitation  does  not  run  against  a  party  during  absence  from 
State,  and  if  when  a  cause  of  action  shall  accrue  against  a  party, 
he  be  out  of  the  S\ate,  the  action  may  be  commenced  within  the 
time  limited  after  his  return  to  the  State. 

The  statute  does  not  run  against  a  married  woman,  or  a  person 
under  the  age  of  twenty-one  years;  one  insane,  or  laiprisoned  on 
criminal  charge,  where  term  of  imprisonment  dc  ss  not  extend  to 
life 

An  action  upon  a  judgment,  contract,  obligation,  or  liability, 
for  the  payment  of  money  or  damages  obtained,  made,  executed, 
or  issued  out  of  the  State,  can  only  be  commenced  as  follows: 

1.  Within  one  year,  when  prior  to  the  passage  of  the  act, 
(March  5,  1867)  more  than  two  and  less  than  five  years  have 
elapsed  since  the  cauyj  of  action  accrued. 

2.  Within  six  mouchs,  when  prior  to  the  passage  of  the  act, 
more  than  five  years  have  elapsed  since  the  cause  of  action  ac- 
crued. 

3.  Within  two  years,  in  all  other  cases,  after  the  cause  of  ac- 
tion accrued;  a  right  of  action  shall  be  deemed  to  have  accrued 
on  a  judgment  at  the  time  of  its  rendition. 


148 


NEVADA. 


[Part  4. 


When  the  cause  of  action  has  arisen  in  any  other  State  or 
Territory  of  the  United  States,  or  in  a  foreign  country,  and  by 
the  laws  thereof  an  action  cannot  be  maintained  against  a  person 
by  reason  of  the  lapse  of  time,  no  action  thereon  shall  be  main- 
tained against  him  in  this  State. , 

No  acknowledgment  or  new  promise  shall  take  the  case  out  of 
the  statute,  except  it  be  in  writing^  signed  by  the  party  to  be 
charged. 

Actions  for  recoveiy  of  possession  of  real  estate  must  be  com- 
menced within  five  years,  except  actions  for  the  recovery  of  min- 
ing ground,  which  must  be  commenced  within  two  years,  from 
time  cause  of  action  accrued. 


CHAPTER  IV. 


ATTACHMENTS. 


Writ  of  attachment  may  be  issued  with  summons,  or  at  any 
time  afterwards: 

1.  In  an  action  uj)on  a  contract  for  the  direct  payment  of 
money,  made,  or  by  the  terms  thereof,  payable  in  this  State, 
which  is  not  secured  by  mortgage,  lien,  or  pledge  upon  real  or 
personal  property,  situated  or  being  in  the  State,  if  so  secured, 
when  such  security  has  been  rendered  nugatory  by  the  act  of 
the  defendant. 

2.  In  an  action  upon  a  contract  against  a  defendant  not  resid- 
ing in  this  State. 

Writ  to  be  issued  upon  filing  of  an  afiidavit  to  be  made  by 
plaintiff,  or  some  one  on  his  behalf,  setting  forth  the  statutory 
grounds  for  issuance  of  the  writ. 

Plaintiff  must  give  bond  to  secure  defendant  against  damage 
arising  from  the  issuance  of  the  writ,  in  case  the  attachment  is 
.dismissed,  or  the  defendant  recover  in  the  action. 

Real  and  personal  property,  debts  and  credits,  stocks  or  shares 
in  anv  corporation,  may  be  attached  in  the  manner  pointed  out 
by  the  statute. 


Chap.  5.] 


NEVADA. 


149 


L(i- 


CHAPTER  V. 

ARREST  IN  CIVIL  ACTIONS. 

The  defendant  may  be  arrested  in  the  following  cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages,  on  a 
cause  of  action  arising  upon  contract,  express  or  implied,  when 
the  defendant  is  about  to  depart  from  the  State  with  intent  to 
defraud  his  creditors,  or  when  the  action  is  for  libel  or  slander. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  projDerty 
embezzled,  or  fraudulently  misapplied  or  converted  to  his  own 
use  by  a  public  officer,  or  an  officer  of  a  corporation,  or  an  at- 
torney, factor,  broker,  agent,  or  clerk,  in  the  course  of  his  em- 
ployment as  puch,  or  by  any  other  person  in  a  fiduci;iry  capacity, 
or  for  misconduct  or  neglect  in  office,  or  in  j  essional  employ- 
ment, or  for  willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  person  1  prop- 
erty unjustly  detained,  when  the  property  or  any  part  thereof 
has  been  concealed,  removed,  or  disposed  of,  so  that  it  cannot  be 
found  or  taken  by  the  sheriff. 

4.  Wher.  the  defendant  has  been  guilty  of  a  fraud  in  contract- 
ing the  debt  or  incurring  the  obligation  for  which  the  action  is 
brought,  or  in  concealing  or  disposing  of  the  property,  for  the 
taking,  detention,  or  conversion  of  which  the  action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  prop- 
erty, or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

The  order  of  an-est  is  only  issued  upon  filing  an  affidavit  and 
bond  as  required  by  statute — bond  to  be  for  a  sum  not  less  than 
four  hundred  dollars. 


I 


is 


s    \ih--'f 


Ires 

)Ut 


150 


NEVADA. 


[Part  4. 


■^ 


CHAPTER  VI. 


JUDGMENTS  AND  JUDGMENT  LIENS. 


From  time  judgment  is  docketed  it  becomes  a  lien  upon  all 
real  property  of  the  judgment  debtor,  not  exempted  from  execu- 
tion in  the  county,  owned  by  him  at  the  time,  or  which  he  may 
afterwards  acquire,  until  the  lien  expires.  Lien  of  judgment 
continues  for  two  years,  unless  the  judgment  be  previously  sat- 
isfied. Personal  property,  not  exempt  from  execution,  is  only 
held  for  satisfaction  of  judgment  after  levy  of  execution  thereon. 


i 


CHAPTER  VII. 

EXECUTIONS,    EXEMPTIONS,    SALE,    AND    REDEMP- 
TION. 

Execution  may  issue  for  the  enforcement  of  a  judgment  at  any 
time  within  five  years  after  the  entry  thereof,  and  may  be  issued 
to  the  sheriff  of  any  county  in  the  State  in  proper  cases. 


Exemptions. 

The  following  property  of  the  judgment  debtor  'h  exempt 
from  execution: 

1.  Chairs,  tables,  desks,  and  books  to  the  value  of  $100. 

2.  Necessary  household  furniture,  wearing  appai  1,  beds,  bed- 
ding, provisions,  and  firewood  sufficient  for  one  mouth. 

3.  Farming  uteusilH;  also  two  oxen  or  two  horHcs,  or  two 
mules  and  their  harness;  two  cows,  one  cart  or  wagon;  and  food 
for  such  oxen,  horses,  cows,  or  mules,  for  one  montli;  also  all 
seed  grain  or  vegetables  actually  provided,  reserved,  or  on  hand 


Chap.  7.1 


NEVADA. 


151 


1- 


»e« 


two 

food 

L,  all 

luul 


for  the  purpose  of  planting  or  sowing,  at  any  time  within  the 
ensuing  six  months,  not  exceeeding  in  value  $400. 

4.  The  tools  and  implements  of  a  mechanic  or  artisan  neces- 
sary to  carry  on  his  trade;  the  instniments  and  chests  of  a  sur- 
geon, physician,  surveyor,  and  dentist,  necessary  to  the  exercise 
of  their  profession,  with  their  scientific  and  professional  libraries, 
and  the  libraries  of  an  attorney  or  counsellor,  and  the  libraries 
of  minis  ero  of  the  gospel. 

5.  The  cabin  or  dwelling  of  a  miner,  not  exceeding  in  value 
$500;  also  all  tools  and  implements  necessary  for  canying  on 
any  mining  operation  not  exceeding  in  value  $500;  and  two 
horses,  mules,  or  oxen,  with  their  harnesses,  and  food  for  the 
same  for  one  month,  when  necessary  to  be  used  in  such  mining 
operations. 

6.  Two  oxen,  two  horses,  or  two  mules,  and  their  harness, 
and  one  cart  or  wagon,  by  the  use  of  which  a  cartman,  huckster, 
peddler,  teamster,  or  other  laborer,  habitually  earns  his  living; 
and  one  horse,  with  vehicle  and  harness,  or  other  equipments 
used  by  a  physician  or  surgeon  or  minister  of  the  gospel  in  mak- 
ing his  professional  visits,  and  food  for  such  oxen,  mules,  or 
horses,  for  one  month. 

7.  One  sewing  machine,  not  exceeding  in  value  $150,  in  actual 
use  by  the  debtor  or  his  family. 

8.  All  fire  engines,  hooks  and  ladders,  and  .Jl  apparatus  and 
furniture  belonging  to  any  fire  company  or  department. 

9.  All  arms,  uniforms,  and  accoutrements  required  by  law  to 
be  kept  by  any  person. 

10.  All  court  houses,  jails,  public  oflBces  and  buildings,  lots, 
grounds,  and  personal  property;  the  fixtures,  furniture,  books, 
papers,  and  appurtenances  belonging  and  pertaining  to  the  court 
house,  jail,  and  public  offices  belonging  to  anj'  county  in  this 
State;  and  all  cemeteries,  public  squares,  parks  and  places,  pub- 
lic buildings,  town  halls,  public  markets,  buildings  for  the  use 
of  the  fire  departments  and  military  organizations,  and  the  lots 
and  grounds  thereto  belonging  and  appertaining,  owned  or  held 
by  any  town  or  incorporated  city,  or  dedicated  by  such  town  or 
city  to  health,  ornament,  or  public  use,  or  for  the  use  of  any  fire 
or  military  company  organized  under  the  laws  of  this  State. 


162 


NEVADA. 


[Part  4. 


11.  None  of  the  above  articles  or  species  of  property  are  ex- 
empt from  execution  issued  upon  a  judgment  recovered  for  its 
price,  or  upon  a  mortgage  thereon. 

12.  The  earnings  of  a  judgment  debtor  arising  from  his  per- 
sonal services  for  tae  thirty  days  preceding  the  making  of  the 
order,  (in  supplemental  proceedings)  to  the  extent  of  fifty  dol- 
lars, are  exempt,  when  it  shall  be  made  to  appear  by  the  debtor's 
affidavit,  or  otherwise,  that  such  earnings  are  necessary  for  the 
use  of  a  family  supported  wholly  or  partially  by  his  labor. 

For  homestead  exemption,  see  "Homesteads." 

Sale. 

Real  property  may  be  sold  upon  twenty  days'  notice,  given  as 
required  by  law;  and  personal  property  after  five  days'  notice  of 
the  time  and  place  of  sale,  as  required  by  law. 

Redemption. 

Real  estate  sold  upon  execution  or  order  of  sale,  upon  mort- 
gage or  otherwise,  may  be  redeemed  by  the  judgment  debtor,  or 
his  successors  in  interest  in  the  whole  or  any  part  of  the  prop- 
erty; or  by  a  creditor  having  a  lien  by  judgment  or  mortgage 
upon  the  property  sold,  or  some  share  or  part  thereof  subsequent 
to  that  upon  which  the  property  was  sold,  within  six  months 
from  the  date  of  sale.  Real  property  sold  foi*  taxes  is  not  sub- 
ject to  redemption.  Personal  property;  sold  upon  execution,  is 
not  subject  to  redemption. 


CHAPTER  VIII. 


PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 


Upon  return  of  execution  unsatisfied,  in  whole  or  in  part,  issued 
upoa  any  judgment,  the  defendant  may  be  required  to  appear 
before  the  Court,  and  answer  under  oath  concerning  his  prop- 
erty. , 


Chap.  9.] 


NEVADA. 


153 


CHAPTER  IX. 


SECURITY  FOR  COSTS. 


When  plaintiflF  is  a  non-resident,  or  is  a  foreign  coporation. 
security  for  costs  may  be  required. 


CHAPTER  X. 


APPEALS. 


IS 


jp- 


An  appeal  from  a  judgment  rendered  in  a  Justice's  Court  may 
be  taken  to  the  district  court  within  thirty  days  after  entry  of 
judgment,  upon  filing  a  bond  with  two  sufficient  sureties  for 
double  the  amount  of  judgment  and  costs,  in  case  stay  of  execu- 
tion is  demaniled. 

An  appeal  may  be  taken  from  the  District  to  the  Supreme 
Court : 

1.  From  a  final  judgment  in  action  or  special  proceeding  com- 
menced in  the  Court  in  which  the  judgment  is  rendered,  within 
one  year  after  the  rendition  of  judgment. 

2.  From  an  order  granting  or  refusing  a  new  trial,  from  an 
order  granting  or  dissolving  an  injunction,  and  from  an  order 
refusing  to  grant  or  dissolve  an  injunction,  and  from  any  special 
order  made  after  the  final  judgment,  within  sixty  days  after  the 
order  is  nade  and  entered  in  the  minutes  of  the  Court. 

3.  From  an  interlocutory  judgment  or  order  in  cases  of  parti- 
tion which  determines  the  rights  of  the  several  parties,  and 
directs  partition,  sale,  or  division  to  be  made,  within  sixty  days 
after  the  rendition  of  the  same. 

In  all  cases  of  appeal  to  the  Supreme  Court,  a  bond  must  be 
filed  in  the  sum  of  $300  for  i)ayment  of  costs  of  appeal ;  and  in 
case  a  stay  of  execution  is  demanded,  then  an  additional  bond 


I 


M 


164 


NEVADA. 


[Part  4. 


must  be  filed  in  a  sum  for  double  the  amount  of  the  judgment 
and  costs.  Bonds  to  be  given  by  appellant,  and  to  be  executed 
by  two  or  more  sureties.  ' 


CHAPTER  XI. 


ESTATES  OF  DECEASED  PERSONS. 


Claims  against  estates  of  deceased  persons  must  be  presented, 
proved,  and  allowed  within  ten  months  after  the  first  publication 
of  administrator's  or  executor's  notice  to  ereditors,  excepting 
claims  of  persons  who  are  non-residents  of  the  State,  who  have 
not  had  actual  notice;  they  may  present  their  claims  at  any  time 
before  distribution  of  estate.  Claims  may  be  verified  by  resi- 
dents before  any  officer  authorized  to  administer  oaths  within 
the  State.  An  affidavit  taken  before  a  justice  of  the  peace  of 
any  other  county  in  the  State  except  the  one  where  the  adminis- 
trator or  executor  r asides,  must  to  entitle  it  to  be  used  or  filed, 
contain  a  certificate  of  the  clerk  of  the  county  where  such  justice 
resides,  reciting  the  facts  that  said  justice  is  duly  commis- 
sioned and  acting  as  such  justice  of  the  peace ;  that  the  signature 
of  such  justice  is  genuine,  and  that  full  faith  and  credit  are  due 
to  all  his  official  acts. 

Affidavits  to  correctness  of  accounts  and  claims,  when  made 
out  of  the  State  of  Nevada,  mu«t  to  insure  their  reception,  be 
verified  before  some  judge  of  a  Court  having  a  seal,  under  the 
seal  thereof,  or  a  commissioner  of  deeds  duly  commissioned  and 
qualified,  of  the  State  of  Nevada,  or  before  a  notary  public  whose 
official  character  is  duly  certified  to  by  the  Secretary  of  State  or 
Territory  in  which  he  and  the  party  making  proof  reside. 

Time  in  which  the  estate  must  be  settled  not  limited  by  stat- 
ute; it  is  subject  to  the  order  of  the  Court. 

District  Courts  have  sole  jurisdiction  of  all  original  proceed- 
ings in  probate  matters. 


Chap.  12.] 


NEVADA. 


155 


CHAPTER    XII. 


HOMESTEADS, 


The  homestead  of  a  judgment  debtor,  consisting  of  a  quantity 
of  land,  together  with  the  dwelling-house  thereon  and  its  ap- 
purtenances, not  exceeding  in  value  five  thousand  dollars,  to  be 
selected  by  husband  and  wife,  or  either  of  them,  or  other  head 
of  the  family,  is  exempt  from  forced  sale  on  execution  or  other 
process  from  any  Court. 

Homesteads  are  declared  as  follows: 

The  selection  to  be  made  by  either  the  husband  or  wife,  or 
both  of  *hem,  or  other  head  of  a  family,  declaring  their  inten- 
tion in  riting  to  claim  the  same  as  a  homestead.  The  same  to 
be  duly  acknowledged  and  recorded  as  conveyances  affecting 
real  estate. 

Declaration  of  intention  to  claim  and  hold  a  homestead  may 
be  made  at  any  time  prior  to  sale  on  execution  or  other  process, 
excepting  on  sale  of  premises,  on  foreclosure  of  mortgage  upon 
the  premises  executed  by  husband  and  wife;  or  where  the  judg- 
ment is  for  the  purchase  price  of  the  property  claimed  as  a 
homestead.  This  exemption  does  not  extend  to  any  mechanic's, 
laborer's  or  vendor's  lien  upon  the  premises. 

The  homestead  may  be  abandoned  by  a  declaration  in  writing, 
signed  and  acknowledged  by  husband  and  wife,  and  recorded 
in  the  office  of  the  county  recorder,  in  the  same  manuer  as  the 
declaration  to  claim  the  same  is  required  to  be  acknowledged 
and  recorded.  On  the  death  of  husband  or  wife,  the  homestead 
and  other  property  exempt  from  sale  on  execution  is  required  to 
be  set  apart  by  the  Court  for  the  benefit  of  the  surviving  hus- 
band or  wife,  and  his  or  her  legitimate  children. 

In  cases  where  homestead  property  is  appraised  at  a  sum  ex- 
ceeding five  thousand  dollars,  the  same  may  be  sold,  and  the 
sum  realized  on  sale  in  excess  of  five  thousand  dollars  and  costa 
pass  to  judgment  creditor. 


156 


NEVADA. 


[Part  4. 


OHAPTER  XIII. 


OF  WITNESSES  AND  DEPOSITIONS. 


Parties  to  the  action  are  not  excluded  from  being  witnesses 
upon  the  ground  of  interest,  except — 

1.  That  no  party  to  an  action  or  proceeding  is  allowed  to 
testify  therein,  when  the  opposite  party  is  the  representative  of 
a  deceased  person,  when  the  facts  to  be  proved  transpired  be- 
fore the  death  of  such  deceased  person. 

2.  Persons  convicted  of  felony,  unless  pardoned,  or  the  judg- 
ment is  reversed  on  appeal,  cannot  be  witnesses. 

Attorneys  or  counsellors  cannot,  except  by  consent  of  their 
client,  be  examined  as  to  any  confidential  communications  made 
to  them  in  the  course  of  their  professional  employment,  and  the 
like  rule  applies  to  physicians,  surgeons,  clergymen  or  priests, 
with  respect  to  confidential  communications  made  to  them  in 
their  professional  capacity. 

4.  Husband  or  wife  cannot  be  witnesses  for  or  against  each 
other,  except  in  actions  brought  by  one  against  the  other. 

5.  Public  ofl&cers  cannot  be  examined  as  witnesses  in  reference 
to  communications  made  to  them  in  official  confidence,  when  the 
public  interest  would,  by  such  disclosures,  be  injured. 

6.  Laws  relative  to  the  attestation  of  instruments  required  to 
be  attested  are  resei-ved  from  the  operation  of  the  statute  allow- 
ing parties  in  interest  to  testify. 

Negroes  can  testify  in  all  cases  where  whites  are  permitted  to 
act  as  witnesses. 

The  testimony  of  a  witness  in  this  State  may  be  taken  in  an 
action  at  any  time  after  the  service  of  the  summons,  or  the  ap- 
pearance of  the  defendant;  and  in  a  special  proceeding,  after  a 
question  of  fact  has  arisen  therein,  in  the  following  cases: 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding,  or 
a  person  for  whose  immediate  benefit  the  action  or  proceeding  is 
prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county  in  which  his 
testimony  is  to  be  used. 


■Chap.  18.1 


NEVADA. 


157 


3.  When  the  witness  is  about  to  leave  the  county  where  the 
action  is  to  be  tried,  and  will  probably  continue  absent  when  the 
testimony  is  required. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial,  is 
nevertheless  too  infirm  to  attend;  or  resides  within  the  county, 
but  more  than  fifty  miles  from  the  place  of  trial. 

The  deposition  may  be  taken  before  any  judge,  or  clerk  of  a 
Court,  or  any  justice  of  the  peace  or  notary  public  in  this  State, 
on  servinjf  upon  the  adverse  party  previous  notice  of  the  time 
and  place  of  the  examination,  together  with  a  copy  of  an  affida- 
vit showing  that  the  case  is  one  mentioned  as  above  stated. 
Such  notice  shall  be  at  least  five  days,  and  in  addition  one  day 
for  every  twenty-five  miles  of  the  distance  of  the  jilace  of  ex- 
amination from  the  residence  of  the  person  upon  whom  notice  is 
served,  unless,  for  cause  shown,  a  judge,  by  order,  prescribe  a 
shorter  time.  Either  party  may  attend  such  examination,  and 
put  such  questions,  direct  and  cross,  as  may  be  proper. 

The  dejiosition,  when  completed  and  corrected,  shall  be  signed 
by  the  witness  and  sealed  and  directed  to  the  clerk  of  the  Court 
in  which  the  action  is  pending,  or  to  such  person  as  the  parties,  in 
writing,  may  agree  upon,  and  either  delivered  by  the  officer  taking 
the  same  to  the  clerk  or  such  person,  or  transmitted  through 
the  mail,  or  by  some  safe  private  opportunity  ;  and  such  deposi- 
tion may  be  used  by  either  party  upon  the  trial  against  any  party 
giving  or  reciving  such  notice,  subject  to  all  legal  objections. 
If  the  parties  attend  at  the  examination,  no  objection  to  the 
form  of  an  interrogatory  shall  be  made  at  the  trial,  unless  the 
same  was  stated  at  the  time  of  the  examination. 

If  the  deposition  to  be  taken  be  by  the  reason  of  the  absence 
or  intended  absence  from  the  county  of  the  witness,  or  because 
he  is  too  infirm  to  attend,  proof,  hj  affidavit  or  oral  testimony, 
shall  be  made  at  the  trial  that  the  witness  continues  absent 
or  infirm,  to  the  best  of  deponent's  knowledge  or  belief. 

Depositions  thus  taken  may  be  also  read,  in  case  of  the  death 
of  the  witness. 

When  a  deposition  has  been  once  taken,  it  may  be  read  in  any 
stage  of  the  same  action  or  proceeding  by  either  party,  and 
shall  then  be  deemed  the  evidence  of  the  party  reading  it. 


■;3; 


168 


NEVADA. 


[Part  4. 


I  I 


Depositions  Taken  Out  of  the  State. 

The  testimony  of  a  witness  out  of  the  State  may  be  taken  by 
deposition  in  an  action  at  any  time  after  the  service  of  the  sum- 
mons, or  the  appearance  of  the  defendant;  and  in  a  special 
proceeding,  at  any  time  after  a  question  of  fact  has  arisen  therein. 

The  deposition  of  a  witness  out  of  the  State  shall  be  taken 
upon  commission  issued  from  the  Court,  under  the  seal  of  the 
Court,  upon  an  order  of  the  judge  or  Court,  on  the  application 
of  either  party,  upon  five  days'  previous  notice  to  the  other.  It 
shall  be  issued  to  a  person  agreed  upon  by  the  parties,  or  if  they 
do  not  agree,  to  any  judge  or  justice  of  the  peace  selected  by 
the  officer  granting  the  commission,  or  to  a  commissioner  ap- 
pointed by  the  governor  of  this  State  to  take  affidavits  and 
depositions  in  other  States  or  Territories. 

Such  proper  interrogatories,  direct  and  cross,  as  the  respective 
parties  may  prepare,  to  be  settled,  if  the  parties  disagree  as  to 
their  form,  by  the  judge  or  officer  granting  the  order  for  the  com- 
mission, at  a  day  fixed  in  the  order,  or  at  the  time  of  granting 
the  order  for  commission,  may  be  annexed  to  the  commission; 
or,  when  the  parties  agree  to  that  mode,  the  examination  may 
be  without  written  interrogatories. 

The  commission  shall  authorize  the  commissioner  to  adminis- 
ter an  oath  to  the  witness,  and  to  take  his  deposition  in  answer 
to  the  interrogatories,  or  when  the  examination  is  to  be  vdthout 
interrogatories  in  respect  to  the  questions  in  dispute,  and  to 
certify  the  deposition  to  the  Court,  in  a  sealed  envelope  directed 
to  the  clerk  or  other  person  designed  or  agreed  upon,  and  for- 
ward to  him  by  mail,  or  other  usual  channel  of  conveyance. 


t  ' 


Chap.  14.] 


NEVADA. 


159 


CHAPTER   XIV. 


JUDICIAL  RECORDS,  HOW  PROVED. 

A  judicial  record  of  this  State,  or  the  United  States,  or  any 
Territory,  may  be  proved  by  the  production  of  the  original,  or 
a  copy  thereof,  certified  by  the  clerk  or  other  person  having  the 
legal  custody  thereof,  under  the  seal  of  the  Court,  to  be  a  true 
copy  of  such  record. 

The  records  and  judicial  proceedings  of  the  Courts  of  any 
other  State  of  the  United  States,  or  of  any  Territory,  may  be 
jt. roved  or  admitted  in  tha  Courts  of  this  State,  by  the  attesta- 
tion of  the  clerk  and  seal  of  the  Court  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  judge,  chief  justice,  or 
2)residing  magistrate,  as  the  case  may  be,  that  the  said  attesta- 
tion is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by  the  pro- 
duction of  a  copy  thereof,  certified  by  the  clerk,  with  the  seal  of 
the  Court  annexed,  if  there  be  a  seal,  or  by  the  legal  keeper  of 
the  record,  with  the  seal  of  his  oflSce  annexed,  if  there  be  a  seal, 
to  be  a  true  copy  of  such  record,  together  with  a  certificate  of  a 
judge  of  the  Court,  that  the  person  making  the  certificate  is  the 
clerk  of  the  Court,  or  the  legal  keeper  of  the  record,  and  in 
either  case  that  the  signature  is  genuine,  and  the  certificate  in 
due  form;  and,  also,  together  with  the  certificate  of  the  minister 
or  embassador  of  the  United  States,  or  of  a  consul  of  the  United 
States,  in  such  foreign  country,  that  there  is  such  a  Court,  speci- 
fying generally'  the  nature  of  its  jurisdiction,  and  verifying  the 
signature  of  the  clerk  and  judge,  or  other  legal  keeper  of  the 
record. 

Second.  A  copy  of  the  judicial  record  of  a  foreign  countrj- 
shall  also  be  admissible  in  evidence  upon  proof: 

1.  That  the  copy  offered  has  been  compared  by  the  witness 
with  the  original,  and  is  an  exact  transcript  of  the  whole  of  it. 

2.  That  such  original  was  in  the  custody  of  the  clerk  of  the 
Court  or  other  legal  keeper  of  the  same;  and, 


160 


NEVADA. 


[Part  4. 


3.  That  the  copy  is  duly  atteste-  jy  a  seal,  which  is  proved  to 
be  the  seal  of  the  Court  where  the  record  remains,  if  it  be  the 
record  of  a  Court;  or  if  there  be  no  such  seal,  or  if  it  be  not  the 
record  of  a  Court,  by  the  signatui'e  of  the  legal  keeper  of  the 


original. 


CHAPTER  XV. 


ACKNOWLEDGMENTS. 


; 


'Hi 


The  proof  or  acknowledgment  of  every  conveyance  affecting 
any  real  estate  shall  be  taken  by  some  one  of  the  following  offi- 
cers : 

1.  If  acknowledged  or  proved  within  this  State,  by  some 
judge  or  clerk  of  a  Coiirt  having  a  seal,  or  some  notaiy  public, 
or  justice  of  the  peace:  provided,  when  the  acknowledgment  is 
taken  before  a  justice  of  the  peace  in  any  other  county  than 
that  in  which  the  real  estate  is  situated,  the  same  shall  be 
accompanied  with  the  certiticati  of  the  clerk  of  the  District 
Court  of  such  county,  as  to  the  official  character  of  the  justice 
taking  the  proof  or  acknowledgment,  and  th.  authenticity  of  his 
signature. 

2.  If  acknowledged  or  proved  without  this  State,  but  within 
the  United  States,  shall  be  taken  by  some  one  of  the  following 
officers  : 

A  judge  or  clerk  of  a  Court  having  a  seal,  or  some  notary 
public  or  justice  of  the  peace,  or  by  any  (commissioner  :ippointed 
by  the  Governor  of  this  State  for  that  purpose  :  provided,  that 
when  the  acknowledgment  is  taken  bv  a  justice  of  the  peace,  the 
same  shall  be  accompanied  by  the  certificate  of  the  clerk  of  a 
Court  of  record  of  the  county  having  a  seal,  as  to  the  official 
character  of  the  justice  and  the  authenticity  of  his  signature. 

3.  If  acknowledged  or  proved  without  the  United  Stati;?,  bv 
some  judge  or  clerk  of  any  Court  of  any  State,  Kingdom  or 
Empire  having  a  seal,  or  by  any  notary  public  therein,  or  by 
any  minister,  commissioner,  or  consul  of  the  United  States, 
appointed  to  reside  '^nerein. 


1 


Chap.  16.1 


NEVADA. . 


161 


CHAPTER  XVI. 
AFFIDAVITS,  BEFORE  WHOM  TO  BE  TAKEN. 

An  aflfidavit  to  be  used  before  any  Court,  judge,  or  officer  of 
this  State  may  be  taken  before  any  judge  or  clerk  of  any  Court, 
or  any  justice  of  the  pea?e,  or  notary  public  in  this  State. 

An  affidavit  taken  in  another  State,  or  in  a  Territory  of  the 
United  States,  to  be  used  in  this  State,  shall  be  taken  before  a 
commissioner  appointed  by  the  Governor  of  this  State  to  take 
affidavits  and  depositions  in  such  other  State  or  Territory,  or 
before  any  judge  of  a  Court  of  record  having  a  seal. 

An  affidavit  taken  in  a  foreign  country,  to  be  used  in  this 
State,  shii^'  be  taken  before  an  embassador,  minister,  or  consul 
of  the  United  States,  or  before  any  judge  of  a  Comt  of  record 
having  a  seal,  in  such  foreign  country-. 

When  an  affidavit  is  taken  before  a  judge  of  a  Court  in 
another  Stnte,  orina  Teiritory  of  the  United  States,  or  in  a  foreign 
country,  the  genuineness  of  the  signature  of  the  judge,  the  ex- 
istence of  Court,  and  the  fact  that  such  judge  is  a  member 
thereof,  shall  be  certified  by  the  clerk  of  the  Court,  under  the 
seal  thereof. 


CHAPTER  XVH. 


LIMITED  PARTNERSHIPS. 


May  be  formed  for  the  transaction  of  mercantile,  merhanical, 
mining,  or  manufacturing  business  by  two  or  more  persons,  as 
provided  for  by  special  statute.  But  nothing  contained  in  the 
act  shall  authorize  such  partnei'ships  for  the  purpose  of  banking 
or  insurance. 

In  partnersliips  of  this  character  there  shall  be  one  or  more 
members  of  the  firm  to  be  known  as  general  partners,  !»,nd  they 


1 
I 


162 


NEVADA. 


[Part  4. 


are  individually  liable  for  the  debts  of  the  firm.  The  special 
partners  are  liable  for  the  firm  debts  to  the  extent  of  their  in- 
terest in  the  fiim  property  or  assets;  also  to  the  extent  of  any 
sums  of  money  by  them  received,  withdrawn,  or  divided,  with 
interest  thereon  from  the  time  they  were  so  withdrawn  from  the 
firm. 

The  business  of  the  partnership  shall  be  conducted  under  a 
firm  name,  in  which  the  names  of  the  general  partners  only 
shall  be  inserted,  and  the  general  partners  only  shall  transact 
the  business.  If  the  name  of  any  special  partner  shall  be  used 
in  said  firm  with  his  consent  or  privity,  or  if  he  shall  personally 
make  any  contract  respecting  the  concerns  of  the  partnership 
with  any  person  except  the  general  partners,  he  shall  be  deemed 
and  treated  as  a  general  partner. 


CHAPTER  XVIII. 
MARRIED  WOMEN 

May  become  sole  traders  upon  petition,  and  by  order  of  Dis- 
trict Court. 

When  they  are  sole  traders,  they  become  liable  for  debts  ir. 
curred  in  the  conduct  of  the  business  authorized  to  be  carried  on 
by  them  as  such.     And  their  separate  property,  if  they  have 
any,  is  liable  for  such  debts. 


CHAPTER  XIX. 


CORPORATIONS 


May  be  formed  for  all  purposes  under  general  statute. 
Stockholders  are  not  individually  liable  for  any  debt  of  the 
corporation. 


'I 


Chap.  20. 


NEVADA. 


168 


CHAPTER  XX. 
CHATTEL  MORTGAGES. 

No  chattel  mortgage  upon  any  personal  property  shall  be  yalid 
for  any  purpose,  except  possession  of  the  property  mortgaged 
be  given  to  and  continuously  retained  by  the  mortgagee,  except 
that  growing  crops  may  be  mortgaged  by  the  execution,  acknowl- 
ment  and  record  of  a  mortgage,  with  delivery  of  possession. 


CHAPTER  XXI. 


INTEREST  AND  USURY. 


Where  there  is  no  express  contract  in  writing,  fixing  a  differ- 
ent rate  of  interest,  interest  shall  be  allowed  at  the  rate  of  ten 
per  cent,  per  annum  for  all  moneys  after  they  become  due  upon 
an}'  bond,  bill,  or  promissory  note,  or  other  instrument  in  writing, 
on  any  judgment  recovered  before  any  Court  in  this  State,  for 
money  lent,  money  due  on  settlement  of  accounts  from  the  day 
on  which  the  balance  is  ascertained,  and  for  money  received  for 
the  use  of  another. 

Parties  may  agree  in  writing  for  the  payment  of  any  rate  of 
interest  whatever  upon  money  due,  or  to  become  due  on  any 
contract.  Judgments  rendered  upon  contracts  shall  confoim 
tliereto,  and  bear  the  interest  agreed  upon^by  the  parties,  which 
shall  be  specified  in  the  judgment :  prtwi'ded,  only  the  amount 
of  the  original  claim  .r  demand  shall  draw  interest  after  judg- 
ment. 


164 


NEVADA. 


[Part  4. 


CHAPTER  XXII. 
PROMISSORY  NOTES  AND  BILLS  OF  EXCHANGE. 

All  notes  in  writing  made  and  signed  by  any  person,  whereby 
he  shall  promise  to  pay  to  any  other  person,  or  to  his  order,  or 
to  the  order  of  any  other  person,  or  to  the  bearer,  any  sum  of 
money  therein  mentioned,  shall  be  due  and  payable  as  therein 
expressed,  and  shall  have  the  same  e£fect,  and  be  negotiable  in 
like  manner,  as  inland  bills  of  exchange,  according  to  the  cus- 
tom of  merchants. 

Days  of  grace  are  allowed  upon  bills  and  promissory  notes, 
where  not  otherwise  expressed. 

Damages  for  non-acceptance  of  bills  of  exchange  upon  the 
usual  protest  are  as  follows,  when  drawn  or  negotiated  in  this 
State : 

If  such  bills  shall  have  been  drawn  upon  any  person  or  persons 
in  any  of  the  United  States  east  of  the  Rocky  Mountains,  fifteen 
dollars  upon  the  hundred  upon  the  principal  sum  specified  in 
such  bill. 

If  such  bill  shall  have  been  drawn  upon  any  person  or  persons 
in  any  part  or  place  in  Europe,  or  in  any  foreign  country,  twenty 
dollars  upon  the  hundred  upon  the  principal  sum  specified  in 
such  bill. 


OHAPTER  XXn, 


MORTGAGES. 

A  mortgage  of  real  property,  whatever  its  terms,  shall  not  be 
deemed  a  conveyance,  so  as  to  enable  the  owner  of  the  mortgage 
to  recover  possession  of  the  real  property  without  a  foreclosure 
and  sale. 


Ohap.  24.  J 


NEVADA. 


165 


CHAPTER  XXIV. 
JOINT  DEBTORS— RELEASF  OF— ACT  1866. 

Any  one  of  two  or  more  joint  debtors,  or  parties  jointly,  or 
jointly  and  severally,  bound  by  any  contract  or  judgment,  may 
be  released  from  his,  her,  or  its  liability  upon  such  contract  or 
judgment  by  the  creditor  or  creditors,  and  such  release  shall  not 
operate,  nor  be  held  to  operate,  in  law  as  a  release  to  the  other 
debtor  or  debtors  upon  such  contract  or  judgment,  except  as 
to  the  released  debtor's  proportion  of  such  liability  or  debt, 
estimated  upon  the  basis  of  the  number  of  such  debtors;  but 
such  release  shall  operate  only  as  a  release  of  all  liability  of 
such  debtor  to  the  creditor  in  such  contract  or  judgment,  and  as 
a  credit  upon  the  same  of  such  propoi*tionate  sum  as  herein 
provided. 

It  shall  not  be  necessary  to  make  the  party  released,  as  pro- 
vided in  the  foregoing  section,  a  party  to  any  action  upon  such 
contract,  but  the  creditor  or  creditors  aforesaid,  may  pursue  the 
remaining  debtors  for  th«  remaining  portion  of  such  debt,  the 
same  as  though  no  such  release  had  been  made. 


CHAPTER  XXV. 


INSOLVENT  DEBTORS— RELIEF  OF— ACT  OF  1865. 


)e 
[re 


Every  insolvent  debtor  may  be  discharged  from  his  debts,  as 
provided  by  the  act,  upon  executing  an  assignment  of  all  his 
r«al,  personal,  or  mixed  property  for  the  benefit  of  all  of  his 
creditors,  provided  the  assignment  be  made  bona  fide  and  with- 
out fraud.  The  District  Court  alone  has  jurisdiction  in  the  mat- 
ter. 

The  insolvent  debtor  is  required  to  file  a  petition,  in  the 


166 


NEVADA. 


[Part  4. 


proper  Court,  having  jurisdiction  where  he  resides,  stating 
briefly  the  circumstances  which  compel  him  to  suiTender  his 
property.  To  the  petition  shall  he  annexed  a  schedule  of  all 
the  indebtedness,  of  every  kind  and  nature  of  the  petitioning 
debtor;  and  containing  also  a  true  and  complete  list  of  all  prop- 
erty belonging  to  him,  real,  personal,  or  mixed,  and  all  choaes 
in  action,  with  the  estimated  value  of  the  same.  The  petition 
must  be  verified.  Upon  tiling  the  petition  and  schedules,  an 
order  is  made  notifying  creditors  to  appear  before  the  judge,  or 
Court,  upon  a  certain  day  and  show  cause  why  the  praytjr  of  the 
petition  should  not  be  granted.  Notice  to  creditors  is  rec^uired 
to  be  given  by  publication  for  not  less  than  thirty  days. 

The  creditors,  having  proved  their  claims,  may  choose  one  or 
more  assignees,  not  exceeding  three.  In  appointing  assignees, 
the  majority  of  the  creditors  in  sums  or  in  claims  shall  prevail. 
The  assignees  shall  give  bonds  in  an  amount  to  be  fixed  by 
the  creditors,  or  by  the  Court.  Assignees,  under  leave  of  the 
Court,  may  sell  all  of  the  property,  coming  to  their  hands,  on 
twenty  days*  notice. 

All  funds  arising  from  sale  of  the  debtor's  property  shall  be 
distributed  by  the  Court.  The  assignees  may  sue,  and  be  sued 
in  respect  to  anything  pertaining  to  the  rights  and  actions  of 
the  insolvent. 

All  suits  brought  against  the  insolvent  anterior  to  the  suxTen- 
der  of  his  property,  in  other  counties,  shall  be  transferred  to  the 
Court  having  jurisdiction  of  the  failure,  and  where  the  insolvent 
has  filed  his  schedule,  and  may  be  continued  on  notice  and 
motion,  against  the  assignees.  When  a  dividend  is  declared 
notice  thereof  shall  \i  .i  given  to  creditors. 

Two  or  more  creditors  may  demand  to  know  if  the  assignees 
have  any  funds  in  their  hands,  and  the  assignees  shall  present 
their  accounts  and  distribute  any  funds  on  hand.  The  assignees 
may  be  removed  upon  cause  sliown  therefor. 

In  case  the  oreditorw  shall  refuse  to  appoint  assignees,  and  no 
creditor  is  willing  to  accept  the  trust,  the  Court  slmll  direct  the 
sheriff  of  the  county  to  take  charge  of  the  surrendered  property. 
The  insolvent  debtor  may  be  cited  before  tlie  Court  and  exam- 
ined, under  cath,  in  regard  to  his  all'airs. 


Chap.  25.1 


NEVADA. 


167 


The  insolvent  debtor  may  be  discharged  only  from  such  debts 
and  liabilities  as  he  has  set  forth  in  his  schedule. 

In  case  of  fraud  on  the  part  of  the  insolvent  debtor, 
or  if  he  shall  be  convicted  of  having,  at  any  time  within 
three  months  next  preceding  his  failures,  sold,  engaged, 
or  mortgaged  any  of  his  goods  and  effects,  or  of  having  other- 
wise asHigned,  transfeiTcd,  or  disposed  of  the  same,  or  any  part 
thereof,  or  confessed  judgment  in  order  to  give  a  preference  to 
one  or  more  of  his  creditors  over  others,  whereby  to  receive  any 
advantage  in  anticipation  of  his  failure,  to  the  prejudice  of  his 
creditors,  he  shall  be  barred  the  benefit  of  the  act. 

If,  after  the  presentation  of  his  petition,  the  insolvent  debtor 
shall  sell,  or  in  any  manner  transfer,  or  assign  any  of  his  prop- 
erty, or  collect  any  debts  due  him,  and  shall  not  give  a  just  and 
tnie  account  of  the  property  so  sold  or  transferred,  and  moneys 
collected,  and  pay  the  same  over  to  the  assignees  within  ten  days 
after  their  uppoinment,  he  shall  be  denied  the  benefit  of  the  act. 

If  at  any  time,  after  the  debtor  may  have  been  discharged,  it 
shall  be  made  to  appear  that  he  has  concealed  any  of  his  prop- 
erty, or  has  given  a  false  schedule,  or  committed  any  fraud  un- 
der tte  act,  he  shall  be  deemed  to  have  forfeited  all  benefit  of 
the  act  and  his  discharge  shall  not  be  a  bar  to  any  claim  that 
may  be  instituted  against  him.  The  insolvent  is  entitled  to  the 
exemptions  allowed  by  law — to  be  set  apart  to  him  by  the  Court. 
The  application  for  the  benefit  of  the  act  must  be  made  by  the 
insolvent  in  person.  The  judge  may  appoint  an  attorney  to  rep- 
resent creditors  residing  without  the  limits  of  the  State. 

Mortgages  and  liens  existing  bona  fide  against  the  suiTen- 
dered  property,  may  be  enforced  in  the  same  manner  as  though 
no  such  surrender  had  been  made. 

In  case  an  insolvent  has  once  received  the  benefit  of  the  act, 
and  shall  during  the  succeeding  year  apply  the  second  time,  he 
shall  not  be  permitted  to  receive  the  benefit  of  the  act,  except 
the  ap})rairtod  value  of  the  propertj^  surrendered  exceed  one- 
third  of  his  debts,  unless  it  be  proven  to  the  judge,  by  the  affi- 
davit of  at  least  two  credible  and  disinterested  witnesses,  that 
the  debtor  has  really  experienced  the  losses  by  him  stated,  and 


168 


NEVADA. 


[Part  4. 


that  said  losses  have  reduced  him  to  the  condition  in  his  peti- 
tion stated. 

The  assignees  shall  make  their  returns  under  oath. 

No  assignment  of  any  insolvent  debtor,  otherwise  than  is  pro- 
vided in  this  act,  shall  be  bgal  or  binding  upon  creditors. 


PART  V. 

i 
STATE  OF  OREGON, 


PREPARED  EXPRESSLY  FOR  THIS  WORKBYDOLPH,  BRONAUGH, 
DOLPH  &  SIMON,  PORTLAND,  OREGON. 


CHAPTER  I. 


COURTS  AND  THEIR  JURISDICTION. 

The  judicial  power  of  the  State  is  vested  in  a  Supreme  Court, 
Circuit  Courts,  and  County  Courts,  which  are  Courts  of  record. 

Justices  of  the  peace  are  invested  with  limited  judicial  powers, 
and  Municipal  Courts  may  be  created  to  administer  the  regula- 
tions of  incorporated  towns  and  cities. 

The  Supreme  Court  consists  of  five  justices,  who  are  elected 
by  the  electors  in  each  district,  and  who  hold  their  offices  for 
six  years. 

The  Supreme  Court  has  jurisdiction  only  to  revise  the  final 
decisions  of  the  Circuit  Courts. 

The  Circuit  Courts  are  held  at  least  twice  in  each  year,  in  each 
county  organized  for  judicial  purposes,  by  one  of  the  justices  of 
the  Supreme  Court.  All  judicial  power,  authority,  and  jurisdic- 
tion not  vested  exclusively  in  some  other  Court  belongs  to  the 
Circuit  Courts,  and  they  have  appellate  jurisdiction  and  super- 


170 


oiiEaoii. 


[Part  5. 


visory  control  over  the  County  Courts,  and  all  other  inferior 
Couiis,  officers  and  tribunals. 

County  Courts  have  jurisdiction,  but  not  exclusive,  of  actions 
at  law,  and  all  proceedings  therein  and  connected  therewith, 
when  the  claim  or  subject  of  the  controversy  does  not  exceed 
the  value  of  five  hundred  dollars. 

Justices'  Courts  have  jurisdiction,  but  not  exclusive,  of  the 
following  actions : 

1.  For  the  recovery  of  money  or  damages  only,  where  the 
amount  claimed  does  not  exceed  $250. 

2.  For  the  recovery  of  specific  personal  projierty,  when  the 
value  of  the  property  claimed  and  the  damages  for  the  detention 
do  not  exceed  $250. 

3.  For  the  recoveiy  of  a  penalty  or  forfeiture,  not  exceeding 
$250. 

4.  To  give  judgment  without  action  upon  the  confession  of 
the  defendant. 

The  jurisdiction  does  not,  however,  extend  to  an  action  in 
which  the  title  to  real  property  shall  come  in  question,  or  to  an 
action  for  false  imprisonment,  libel,  slander,  malicious  prosecu- 
tion, criminal  conversation,  seduction,  or  upon  a  promise  to 
marry. 


CHAPTER  II. 


TERMS  OF  COURT,  WHEN  AND  WHERE  HELD. 

The  following  are  the  times  and  places  of  holding  Courts, 
both  Federal  and  State,  in  the  several  counties  and  districts  of 
the  State:      ' 


United  States  Circuit  Court,  District  of  Oregon. 

Regular  terms  held  at  Portland,  on  the  second  Monday  in 
Aj)ril,  and  first  Monday  in  October. 

Judges,  Hon.  Stephen  J.  Field,  Associate  Justice  of  the  Su- 
preme Court,  and  Hon.  Lorenzo  Sawyer,  Circuit  Judge.  Clerk, 
R.  H.  Larason.     Marshal,  A.  W.  Waters. 


Chap.  2.] 


OBEOON. 


171 


United  States  District  Court,  District  of  Oikgon. 

Regular  terms  held  at  Portland,  on  the  first  Monday  of  March; 
July  and  November. 

Judge,  Hon.  Matthew  P.  Deady.  Clerk,  E.  H,  Lamson. 
Marshal,  A.  W.  Waters.  U.  S.  District  Attorney,  Rufus  Mal- 
lory.     Register  in  Bankruptcy,  H.  H.  Northup. 

Supreme  Court  of  Oregon. 

The  Supreme  Court  consists  of  five  judges,  all  of  whom  do 
circuit  duty. 

Chief  Justice,  Hon.  Payne  P.  Prim.  Associate  Justi  s,  Hon. 
J.  F.  Watson,  Hon.  R.  P.  Boise,  Hon.  E.  D.  Shattuck,  Hon. 
L.  L.  McArthur. 

Regular  terms  held  at  Salem,  on  the  second  Monday  in  De- 
cember of  each  year,  and  special  terms  held  at  such  other  times 
as  the  Court  appoints. 

Circuit  Courts  of  the  Statf  of  Oregon. 


I'orNTIKS. 


TIMBS  OF  HOLDING. 


Bftker First  Monday  of  October  and  third  Monday  nf  May. 

Benton Third  Monday  <>f  November  and  second  Moiulay'^V  April. 

Claulcauias Fourth  Monday  o(  April  and  fourth  Monda\  of  8eptenil)€r. 

Clatsop Second  Tuesday  of  Au)fU8t  and  fourth  Tvicsday  of  January. 

Colnnihia Second  Monday  of  April. 

Coos Fourth  Monday  of  May  and  second  Monday  of  September. 

Curry |  First  Monday  of  .lunc. 

Douii^las jThinl  Monday  of  October  and  second  Monday  of  May. 

Grant jThird  Monday  of  Septemlicr  and  first  Monday  of  June. 

Jackson jScc-tnd  Monday  of  February,  June  and  November. 

Josephine Fourth  Monday  of  Ajiril  and  fourth  Monday  of  October. 

Lake Fourth  Monday  of  June  and  November 

Lane iThini  Monday  of  April  and  first  Monilay  in  November. 

Linn ISecond  Monday  in  March  and  fourth  Monday  in  ()ctober. 

Marion '  Fourth  Monday  of  Feb. ,  second  Monday  of  June,  and  third  Monday  of  Oct. 

Multnomah Second  Monday  of  February,  June,  and  October. 

Polk Second  Monday  of  May  and  first  Monday  of  Decendier. 

Tillamook |  Second  Monday  in  .luly. 

Umatilla Fourth  Monday  of  Octolier  and  last  Monday  of  April. 

Union IThini  Monday  of  i  >ctober  and  first  Monday  of  May. 

Wasco ISecond  Monday  o  t  November  and  third  Monday  of  June. 

Washinffton  ....  Fourth  Monday  of  May  and  first  Monday  of  October. 
Yamhill I  Fourth  Monday  i>f  March  and  first  Momiav  of  October 


172 


OBEOON. 


Terms  op  the  County  Courts. 


[Parts. 


In  the  counties  of  Clackamas,  Douglas,  Josephine,  Curry, 
Coos,  Columbia,  Clatsop,  Tillamook  and  Umatilla — on  the  first 
Monday  of  January,  April,  July  and  September. 

In  the  counties  of  Grant,  Baker,  Lane,  Wasco  and  Yamhill — 
on  the  first  Monday  of  January,  March,  May,  July,  September 
and  November. 

In  the  county  of  Lake — on  the  first  Monday  of  every  alternate 
month. 

In  the  county  of  Union — on  the  second  Monday  of  May  and 
the  first  Monday  of  January,  March,  July,  September  and 
November. 

In  the  counties  of  Jackson,  Linn,  Benton,  Folk,  Marion, 
Washington  and  Multnomah — on  the  first  Monday  of  each 
month. 


CHAPTER  III. 


COMMENCEMENT  OF  SUITS. 


Actions  at  law  are  commenced  by  filing  a  complaint  with  the 
clerk  of  the  Court. 

At  any  time  after  the  ttction  is  commenced,  the  plaintiff  may 
?ause  a  suiamons  to  be  served  on  the  defendant. 

The  summons  must  contain  the  name  of  the  Court  in  which 
the  complaint  is  filed,  the  names  of  the  parties  to  the  action, 
and  the  title  thereof ;  it  must  be  subscribed  by  the  plaintiff  or 
his  attorney,  and  directed  to  the  defendant,  and  require  him  to 
appear  and  aijswer  the  complaint,  or  the  plaintiff  will  take  judg- 
ment for  a  sum  specified  therein. 

If  the  defendant  be  served  within  the  county  in  which  the 
action  is  commenced,  he  must  appear  and  answer  the  complaint 
within  ten  days  from  the  date  of  the  service ;  but  if 
served  in  any  other  county  in  the  State,  he  must  appear  and 
answer  the  complaint  within  twenty  days  from  the  date  of  ser- 
vice. 


Oliap.  4.] 


OREOOM. 


178 


CHAPTER  IV. 
PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  recovery  of  real  property,  or  aa  estate,  or  in- 
terest therein,  or  for  injury  thereto,  and  for  the  recovery  of  any 
personal  property  distrained  for  any  cause,  shall  be  commenced 
and  tried  in  the  county  in  which  the  subject  of  the  action,  or 
some  part  thereof,  is  situated. 

In  all  other  cases  the  action  shall  be  commenced  and  tried  in 
the  county  in  which  the  defendants  or  either  of  them  reside,  or 
may  be  found  at  the  commencement  of  the  action.  If  none  of 
the  parties  reside  in  this  State,  the  same  may  be  tried  in  any 
county  which  the  plaintiff  may  designate  in  his  complaint. 


CHAPTER  V. 


LIMITATION  OF  ACTIONS. 

The  periods  prescribed  for  the  commencement  oi'  actions  are 
as  follows: 

Within  Twenty  Years.' 

Actions  for  the  recovery  of  real  property,  or  for  the  recovery 
of  the  possession  thereof. 


Within  Ten  Years: 

Actions  upon  a  j  adgment  or  decree  of  any  Court  of  the  United 
States,  or  of  any  State  or  Territory  within  the  United  States. 
Actions  upon  sealed  instruments. 

Within  Six  Years: 

An  action  upon  a  contract  or  liability  express  or  implied,  ex- 
cepting those  already  mentioned. 


174 


OBEQON. 


[Part  5. 


An  action  upon  a  liability  created  by  statute,  other  than  a 
penalty  or  forfeiture. 

An  action  for  waste  or  trespass  upon  real  propeiiy . 

An  action  for  taking,  detaining  or  injuring  personal  property, 
including  an  action  for  the  specific  recovery  thereof. 

Within  Three  Years: 

An  action  against  a  sheriff,  constable  or  coroner,  upon  a 
liability  incurred  by  the  doing  of  an  act  in  his  official  capacity, 
or  by  the  omission  of  an  official  duty  ;  but  this  does  not  apply 
to  an  action  for  an  escape. 

An  action  upon  a  statute  for  a  i)enalty  or  forfeiture. 

Within  Two  Years: 

An  action  for  libel,  slander,  assault,  battery,  or  false  impris- 
onment ;  for  criminal  conversation,  or  for  an  injury  to  the 
person  or  rights  of  another  not  arising  on  contract. 

An  action  upon  a  statute  for  a  forfeiture  jr  penalty  to  the  State. 

Within   One   Year : 

An  action  against  a  sheriff  or  other  officer  for  the  escape  of  a 
pnsouer  arrested  or  imprisoned  on  civil  process. 


^  Ti  action  for  any  cause  not  hereinbefore  provided  for  shall  be 
commenced  within  ten  years  after  the  cause  of  action  accrued. 


HMP 


BimwKnmun«nK»vcsc9 


Chap.  6.] 


OREGON. 


•<^'^<;>*     175 


CHAPTER     VI. 


rv. 


M 


ATTACHMENIH. 

The  plaintiff,  at  the  time  of  iHHiiinj''  the  HummoiiH,  or  any  time 
afterwards,  may  have  the  property  of  the  tlefeiuhmt  attached,  l)y 
tiling  with  the  clerk  of  th<3  Court  an  undertaking,  witJi  one  or 
more  sureties  to  the  amount  for  which  the  plaintiff  demands 
judgment,  and  not  less  than  $100;  and  the  plaintiff,  or  some  ime 
in  his  behalf,  making  and  tiling  an  affidavit  showing: 

1.  That  the  defendant  is  indebted  to  the  plaintiff",  (si)ecifying 
the  amount  of  such  indebtedness,  over  and  above  uU -legal  set- 
offs or  counter-claims)  upon  a  contract,  express  or  implied,  for 
the  direct  payment  of  money,  and  that  such  contract,  was  made 
or  is  payable  in  this  State,  and  that  the  payment  of  the  same 
has  not  been  secured  by  any  mortgage,  lieu,  or  pledjje  upon  real 
or  personal  property ;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff,  (specifying 
the  amount  of  such  indel)tedness,  as  near  as  may  be,  over  and 
above  all  legal  set-off's  or  counter-clainn)  and  that  the  dofeiulant 
is  a  non-resident  of  the  State;  and, 

3.  That  the  siun  for  which  the  attachment  is  asked  is  an  a(!tual 
bona  tide  existing  debt,  due  and  owing  fi'om  the  defendant  to 
the  plaintiff,  and  that  the  attachment  is  not  sought,  and  the  ac- 
tion prosecuted  to  hinder,  delay  or  defraud  any  creditors  of  the 
defendant. 


CHAPTER  Vn. 


ARRESTS  IN  CIVIL  ACTIONS, 


The  defendant  may  be  arrested  in  the  following  <iii*es: 
In  an  action  for  the  recovery  of  money  or  damages  on  a 
of  action  arising  out  of  contract,  wli4»n  the  defendant  i«  ntA.  • 


176 


OREGON. 


[Part  5. 


resident  of  the  State,  or  is  about  to  remove  therefrom;  or  when 
the  action  is  for  an  injury  to  person  or  character,  or  for 
injuring  or  wrongfully  taking,  detaining,  or  converting  prop- 
erty. In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to 
marry,  or  for  money  received,  or  property  embezzled  or  fraudu- 
lently misapplied  or  converted  to  his  own  use  by  a  public  oflSicer, 
or  an  attorney,  of&oer,  or  agent  of  a  corpoi'ation,  factor,  agent 
or  broker,  or  other  person  in  a  fiduciary  capacity.  In  an  action 
to  recover  the  possession  of  any  personal  property  unjustly  de- 
tained, when  the  property  or  any  portion  thereof  has  been  con- 
cealed, removed,  or  disposed  of. 

When  the  defendant  has  been  guilty  of  a  fraud  in  contracting 
the  debt  or  incurring  the  obligation  for  which  the  action  is 
brought. 

When  the  defendant  has  removed  or  disposed  of  his  prop- 
erty, or  is  a)x)ut  to  do  so,  with  intent  to  defraud  his  creditors. 

No  female  can  be  arrested  in  any  action,  except  for  an  injury 
to  person,  character,  or  property. 


CHAPTER  Vm. 


JUDGMENTS  AND  JUDGMENT  LIENS. 

A  lodgment,  when  entered,  becomes  a  lien  upon  the  real 
Mtate  owned  by  the  defendant  in  the  county  at  the  time  of  the 
entry,  and  such  as  he  may  subsequently  acquire.  The  lien 
continues  for  ten  years. 


Chap.  9.] 


OBEGON. 


177 


CHAPTER  IX. 
EXECUTIONS,  EXEMPTIONS,  SALE,  AND  REDEMPTION. 

The  party  in  whose  favor  a  judgment  is  given  which  requires 
t)'e  payment  of  money,  the  delivery  of  real  or  personal  property, 
or  either  of  them,  may,  at  any  time  after  the  entry  thereof, 
have  a  writ  of  execution  issued  for  its  enforcement. 

There  are  three  kinds  of  execution  :  one  agai':.^t  the  property 
of  the  judgment  debtor,  another  against  his  person,  and  the 
third  for  the  delivery  of  real  or  personal  property. 

In  the  Circuit  and  County  Courts  executions  are  returnable  in 
sixty  days,  and  in  Justices'  Courts  in  thirty  days. 

In  the  Circuit  and  County  Courts  there  is  no  stay  of  execution, 
except  pending  an  appeal ;  in  Jut  iicos'  Courts  execution  may  be 
stayed  for  thirty  days  upon  tiling  bond. 

The  following  pers(>nal  property  is  exempt  from  sale  under  an 
execution  : 

Books,  pictures,  and  musical  instniments,  to  the  value  of  $75 ; 
wearing  apparel  to  the  value  of  $100,  and  if  a  householder,  to  the 
value  of  $50  for  eo-ch  member  of  the  family  ;  tools,  implements, 
apparatus,  team,  vehicle,  harness,  or  library,  when  necessary  in 
the  occupation  or  prof  ession  of  a  judgment  debtor,  to  the  amount 
of  $400 ;  if  the  judgment  debtor  be  a  householder,  ten  sheep 
with  one  year's  fleece,  two  cows,  five  swine,  household  goods, 
furniture,  and  utensils,  to  the  value  of  $300.  No  article  of 
property  is  exempt  from  execution  issued  upon  a  judgment  for 
the  purchase  price. 

Upon  a  sale  of  real  property,  when  the  estate  is  less  than  a 
leasehold  of  two  years'  unexpired  term,  the  sale  is  absolute. 
In  all  other  cases  such  property  is  subject  to  redemption. 

The  judgment  debtor,  or  his  successor  in  interest,  may  redeem 
such  property  within  sixty  days  from  the  date  of  the  order  con- 
firming the  sale,  l)y  jtaying  the  amount  of  the  purchase  money, 
with  interest  at  the  rate  of  two  per  cent,  per  montli  from  the 
time  of  sale,  together  with  the  amount  of  taxes  the  purchaser 
may  have  paid  thereon. 


. 


178 


OREGON. 


[Part  5. 


A  creditor  having  a  lien  by  judgment,  decree  or  mortgage,  on 
any  portion  of  the  property  subsequent  in  time  to  that  on  which 
the  property  was  sokl,  may  also  redeem. 


CHAPTER   X. 


PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 

After  the  issuing  of  an  execution  against  property,  and  upon 
proof  by  the  affidavit  of  the  plaintift',  in  the  writ  or  otherwise, 
to  the  satisfaction  of  the  Court  or  judge  thereof,  that  the  judg- 
ment debtor  has  property  liable  to  execution  which  he  refuses  to 
apply  towards  the  satisfaction  of  the  judgment,  such  Court  or 
judge  may  by  an  order  require  the  judgment  debtor  to  appear 
and  answer  under  oath  concerning  the  same.  If  it  appear  from 
such  examination  that  the  judgment  debtor  has  property  liable 
to  execution,  the  Court  or  judge  shall  make  an  order  requiring 
the  judgment  debtor  to  apply  the  same  in  satisfaction  of  the 
judgment.  Disobedience  to  any  such  order  ma^  be  punished  as 
for  a  contempt. 


CHAPTER  XI. 


SECURITY  FOR  COSTS 

Security  for  costs  can  only  be  required  in  Justices'  Courts. 
If  the  plaiittitt'  is  a  non-resident  of  the  county,  the  justice  may 
require  him  to  gi',  e  an  undertaking  with  one  or  more  sureties  for 
the  costs  and  dinburHements  of  the  action  before  issuing  the 
summons  nd  if  at  any  time  before  the  commencement  of  "k 
trial  the  tleiondant  apply  tljcofor,  the  justice  must  require  ;  ii 
plainiitf  to  give  such  uuflortaking,      Ui)on  appliention  ot  de- 


Chap.  11]. 


OREGON. 


179 


fendant,  and  in  the  discretion  of  the  justice,  the  plaintiff,  if  a 
resident  of  the  county,  may  be  required  to  give  an  undertaking 
for  costs.  The  undertaking  may  be  in  the  following  form:  "I, 
A  B,  or  We,  A  B  and  C  D,  undertake  to  pay  E  F,  the  defendant 
in  this  action,  all  costs  and  disbursements  that  may  be  adjudged 
to  him  in  this  action." 

The  sureties  must  possess  the  qualifications  of  bail  upon 
airest,  and  if  required  ])j  the  defendant,  must  justify  in  a  sum 
not  less  than  $50. 


CHAPTER  XII. 
APPEALS. 

Any  party  to  a  judgment  or  decree,  other  than  a  decree  or 
judgment  for  want  of  an  answer,  or  by  confession,  may  appeal 
therefrom. 

An  appeal  to  the  Supreme  Court  shall  l>e  taken  by  serving 
and  tiling  a  notice  of  appeal  within  six  months  from  the  entrj' 
of  the  judgment  or  decree  appealed  from,  or  to  the  Circuit 
Court  within  tliirty  days  after  such  entry,  and  not  otherwise. 

AppealH  from  the  Circuit  Courts  are  taken  to  the  Supreme 
Court,  and  from  County  Courts  and  Justices'  Courts  to  the  Cir- 
cuit Coui*t  of  the  countv. 

Upon  an  api)eal  from  the  Circuit  or  County  Court,  the  appel- 
lant must  tile  an  undertaking,  with  one  or  more  sureties,  to  the 
effect  that  the  appellant  will  [)ay  all  damages,  costs  and  dis- 
bursements  which  may  l>f  awardiMl  agiiinst  him  on  the  appeal; 
and  if  the  judgment  or  decree  appeah'd  from  be  for  tlip  re- 
covery of  money  or  porsi>ual  [u-ojuuty,  or  the  value  thereof, 
t<J  obtain  a  stay  of  luoceodings  the  undertaking  must  further 
provide,  that  it'  the  judgment  or  deci*ee  appealed  from  bt  af- 
firmed, the  appellant  will  satisfy  it  so  far  as  affirmed. 

Vpon  ail  appeal  from  -lusticeh'  Court,  the  undertaking  is  to 
the  efltect  that  the  appellant  will  pay  all  costs  and  disbursements 


Mi 


180 


OHEOON. 


[Part  5. 


that  may  be  awarded  against  liim  on  the  appeal,  and  that  he  will 
satittfy  any  judgment  that  may  be  given  against  him  in  the  appel- 
late court  on  the  appeal. 


CHAPTER  XIII. 


ESTATES  OF  DECEASED  PERSONS. 

Every  executor  or  administrator  must,  immediately  after  his 
appointment,  publish  a  notice  thereof  in  some  newspaper  pul)- 
lishcd  in  the  county,  lor  four  successive  weeks,  Siicli  notice 
must  require  all  licrsons  having  claims  against  the  estiile  to  pre- 
sent them  to  the  administraior  or  executor,  within  six  months 
from  the  date  of  sucli  notice,  with  the  proper  vouchers.  A  claim 
not  i)reHented  within  six  months  is  not  barred,  but  it  cannot  be 
paid  until  tluj  claims  presented  within  that  period  have  b(>en  sat- 
islied.  A  chiim  nut  duy  or  contingent  nuist,  nevertheless,  be 
presented  us  any  other  (.'laim.  Until  administration  has  been 
completed,  a  <  laim  against  the  estate  may  be  presented,  allowed 
and  paid  out  of  any  assets  not  otherwise  appropriated  or  liable. 

Every  claim  must  l)e  vorilied  by  the  atJidavit  of  the  claimant, 
or  some  one  on  his  behalf,  who  has  i)ersonal  knowledge  of  the 
facts,  to  the  etVect  that  the  amount  claimed  is  justly  due,  that  no 
payments  have  been  made  tlieriion  except  as  stated,  and  that  there 
is  no  just  counter-claim  to  the  same. 

There  is  no  sjiecitied  time  in  which  estttte»  aie  required  to  be 
ttettled. 


Chap.  14.1 


OBEOOM. 


181 


CHAPTER  XIV. 


DESCENT  OF  HEAL  PKOPERTY. 


Wlien  any  person  (Hew,  seizod  (if  any  real  property,  or  any 
rijjflit  thereto,  or  any  interest  therein,  not  liavinpf  lawfully  de- 
vised  the  same,  siieii  real  property  descondw,  subject  to  hiw  debts, 
as  follows; 

1.  In  ecpial  shares  to  his  children  and  to  the  issue  of  any  de- 
ceased child  by  right  of  rei)reHentation;  and  if  there  bo  no  child 
of  the  intestate  living  at  the  time  of  his  death,  such  real  ])r()p- 
erty  descejids  to  all  his  other  linc^al  descendants;  and  if  all  such 
descendiirits  are  in  the  same  degree  of  kindred  to  tiie  intestate, 
they  take  such  real  property  ecpially;  or  otherwise,  they  take 
according  to  the  right  of  representation. 

*2.  If  the  intestate  leaves  no  lineal  descendants,  sucJi  projierty 
descends  to  his  wife;  and  if  ho  leaves  no  wife,  it  descends  to  his 
father. 

;{.  If  the  intestate  leaves  no  lineal  descendants,  wife  nor 
fathci-,  such  real  property  dc^scends  in  eipxal  shares  to  his 
l)rothers  iind  sisters,  and  to  the  issue  of  any  deceased  brother  or 
sister  by  right  of  I'epresentation;  but  if  the  intestate  leaves  a 
mother  also,  she  takes  an  ecpial  share  with  yuch  brothers  and 
sisters. 

■4.  If  the  intestate  leaves  no  lineal  descendants,  wife,  father, 
brother  nor  sister  living,  at  his  death,  such  real  i)ropi  rty  de- 
scends to  his  mother,  to  the  exclusion  of  the  issue  of  his  de- 
ceased brothers  or  sisters. 

5.  If  the  intestate  leaves  no  lineal  descendants,  wife,  father, 
mother,  brother  nor  sister,  such  real  property  descends  to  his 
next  of  kin  in  ecpial  degree,  excepting  that  when  there  are  two 
or  more  collateral  kindred  in  ('([ual  d<'gree,  but  claiming  through 
dili'crei  ancestors,  those  who  claim  thi'ough  the  nearest  an- 
cestor are  preferred  to  those  claiming  through  a  more  remote 
ancestor. 

G.  If  the  intestate  leaves  one  or  more  children,  and  the  issue 


182 


OREGON. 


IPartft. 


of  one  or  more  deceased  children,  and  any  of  such  surviving 
children  shall  die  under  age,  without  having  been  married,  all 
such  real  property  that  came  to  such  deceased  child  by  inherit- 
ance from  such  intestate,  descends  in  equal  shares  to  the  other 
children  of  the  intestate,  and  to  the  issue  of  any  other  children 
of  such  intestate  who  shall  have  died,  by  right  of  representa- 
tion; but  if  all  the  other  children  of  such  intestate  are  also 
dead,  and  any  of  them  shall  have  left  issue,  such  real  property 
so  inherited  by  such  deceased  child,  descends  to  all  the  issue  of 
such  other  children  of  the  intestate  in  equal  shares,  if  they  are 
in  the  same  degree  of  kindred  to  such  deceased  child;  other- 
wise, they  take  by  right  of  representation. 

7.  If  the  intestate  leaves  no  lineal  descendants  or  kindred, 
such  real  property  escheats  to  the  State  of  Oregon. 


CHAPTER  XV. 


DESCENT  OF  PERSONAL  PROPERTY. 


When  any  person  dies  possessed  of  any  personal  property, 
not  having  lawfully  bequeathed  the  same,  such  personal  prop- 
erty is  applied  and  distributed  as  follows : 

1.  If  the  intestate  leaves  a  widow,  she  is  allowed  all  her  arti- 
cles of  apparel  and  ornaments,  according  to  the  degree  and 
estate  of  the  intestate,  and  such  property  and  provisions  for  the 
use  and  support  of  herself  and  minor  children  as  shall  be 
allowed  and  ordered. 

2.  The  personal  property  of  the  intestate  remaining  after 
such  allowance  is  applied  to  the  payment  of  the  debts  of  the 
intestate,  and  the  charges  and  expenses  of  administration. 

3.  The  residue,  if  any,  of  the  personal  property  is  distributed 
among  the  persons  who  would  be  entitled  to  the  real  property, 
except  as  otherwise  provided. 

4.  If  the  intestate  leaves  a  husband,  such  husband  is  entitled 
to  the  wholu  of  the  personal  property. 


Chap.  15.] 


OREOON. 


183 


5.  If  thfi  intestate  leaves  a  widow  and  issue,  such  widow  is 
entitled  to  receive  one-half  of  such  personal  property ;  but  if 
there  be  a  widow  and  no  issue,  she  is  entitled  to  the  whole  of 
such  personal  property. 

6.  If  there  be  no  husband,  widow  or  kindred,  the  whole 
escheats  to  the  State. 


CHAPTER  XVI. 

HOMESTEADS  AND  I>()\VER. 

Homesteads. 
There  is  no  homestead  law  in  this  State. 

DOWEK. 

The  widow  of  every  deceased  person  is  entitled  to  dower,  or 
the  use  during  her  natural  life  of  one-third  part  of  all  the  lands 
of  which  her  husband  was  seized  of  an  estate  of  inheritance  ot 
any  time  during  the  marriage,  unless  she  is  lawfully  barred 
thereof. 


CHAPTER  XVri. 


DEPOSITIONS. 


led 


The  deposition  of  a  witness  out  of  the  State  may  be  taken 
upon  commission  issued  from  the  Court,  or  without  commission 
before  a  commissioner  appointed  by  the  governor  of  this  State 
to  take  depositions  in  other  States  or  countries.  The  commis- 
sion may  be  issued  by  the  (derk  of  the  Court,  or  the  justice  in  a 
cause  pending  in  Justice's  Court,  on  the  application  of  either 
party  upon  five  days'  pre « ious  notice  to  the  other.     It  is  issued 


184 


OBEOON. 


[Parts. 


to  a  person  agreed  upon  by  the  parties,  or  if  they  do  not  agree, 
to  a  judge,  justice  of  the  peace,  notary  public,  or  clerk  of  a 
Court  selected  by  the  oflBcer  issuing  it.  Such  interrogatories, 
direct  and  cross,  as  the  parties  may  prepare  may  be  annexed  to 
the  commission. 


-County. 


The  following  form  may  be  used  : 

In  the Court  of  the  State  of  Oregon  for- 

A  B,  Plaintiff, 

C  D,  Defendant. 

Deposition  of  E  F,  a  witness  on  behalf  of  the 

in  the  above  entitled  action,  taken  before  me,  a  commissioner 
named  in  the  attached  commission,  anda(notai'y  public) in  an'l  for 

county,  State  of on  the 

day  of 187 at  my  office  at  the  city  of 

in  said  county  and  State,  who  being  first  duly  sworn  in 

answer  to  the  direct  and  cross  interrogatories  attached  to  said 
commission  in  their  order,  testified  as  follows  : 

1.  To  the  first  direct  interrogatory  he  answers,  etc. 
When  completed,  the  deposition  should  be  read  to  the  witness, 
and  then  subscribed  by  him. 

The  following  form  of   certificate   should  be  added  to  the 
deposition : 


State  of- 


CoUNTY   OF- 


ss. 


I.- 


-a  (notary  public)  in  and  for  said  county  and 


State,  and  commissioner,  before  whom  the  foregoing  deposition 
was  taken,  do  hereby  certify  that  the  deposition  of  said  witness, 

E  F,  was  taken  before  me,  at  my  office  in  the  city  of 

in  said  county  and  State,  on  the day  of 18 

between  the  hours  of o'clock  a.  m.,  and o'clock 

— M.  of  said  day ;  that  before  proceeding  to  the  examination, 
the  witnet^s  was  duly  sworn  to  tell  the  tnith,  the  whole  truth, 
and  nothing  but  the  truth ;  that  at  the  same  time  and  place  I 
propounded  to  said  witness  the  interrogatories  attached  to  said 


Chap.  17.1 


OREQON. 


186 


commission  in  their  order,  and  reduced  his  answers  thereto  to 
writing,  and  that  when  completed,  the  deposition  was  carefully 
read  over  by  me  to  said  witness,  and  then  by  him  subscribed. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  ofiieial 
seal,  this day  of 187 . 

[seal.  ]  

Notary  Public,  etc. 
and  Commissioner. 

Endorse  upon  the  envelope  the  title  of  the  Court  and  cause, 

and  the  words  "  deposition  of "  and  forward  by  mail  to 

the  officer  issuing  the  commission. 


CHAPTER  XVIII. 
JUDICIAL  RECORD. 


The  judicial  record  of  a  sister  State  is  proved  by  the  produc- 
tion of  a  copy  thereof,  certified  by  the  clerk  or  other  person 
having  the  legal  custody  of  the  record,  with  the  seal  of  the 
Court  affixed  thereto,  if  there  be  a  seal,  together  with  the  certifi- 
cate of  the  chief  judge,  or  presiding  magistrate,  that  the  certifi- 
cate is  in  due  form,  and  made  by  the  clerk  or  other  person  hav- 
ing the  legal  cubtody  of  the  oiiginal. 


CHAPTER  XIX. 


L8 
3k 

|n. 
|h, 

I 

lid 


ACKNOWLEDGMENTS. 

Deeds  may  be  acknowledged  within  this  State  before  any 
judge  of  the  Supreme  Court,  county  judge,  justice  of  the  peace, 
notary  public,  or  clerk  of  a  Court.  No  acknowledgment  of  any 
conveyance  having  been  executed  shall  be  taken  by  any  officer, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


1^ 

UP 


128 


P.2 


tL      

n  m 


IIIM 

2.0 


1.8 


1.25      1.4 

1.6 

^ (,     — 

► 

Photographic 

Sciences 
Corporation 


,-\ 


t 


sj 


^\ 


^\^ 


M 


23  WEST  MAIN  STR'iET 

WEBSTER,  N.Y.  14580 

(716)  873-4503 


6^ 


,% 


o^ 


*^ 


186 


OREGON. 


[Part  5. 


unless  he  shall  know  or  have  satisfactory  evidence  that  the  per- 
son making  such  acknowledgment  is  the  individual  described  in 
and  who  executed  such  conveyance. 

When  a  married  woman,  residing  in  this  State,  shall  join  with 
her  husband  in  a  deed  of  conveyance  of  real  estate  situated 
within  this  State,  the  acknowledgment  of  the  wife  shall  be  taken 
separately  6,nd  apart  from  her  husband,  and  she  shall  acknow- 
ledge that  she  executed  such  deed  freely  and  without  fear  or 
compulsion  from  any  one.  If  any  deed  shall  be  executed  in 
any  other  State,  Territory,  or  District  of  the  United  States, 
such  deed  may  be  executed  and  acknowledged  according  to  the 
laws  of  such  State,  Territory,  or  District,  or  before  any  commis- 
sioner appointed  by  the  governor  of  this  State  for  such  purpose; 
and  unless  the  acknowledgment  be  taken  before  such  commis- 
sioner, such  deed  shall  have  attached  thereto  a  certificate  of  the 
clerk  or  oth; .' proper  certifying  officer  of  a  Court  of  record  of 
the  county  or  district  within  which  such  acknowledgment  was 
taken,  under  the  seal  of  his  office,  that  the  person  whose  name 
is  subscribed  to  the  certificate  of  acknowledgment  was,  at  the 
date  thereof,  such  officer  as  he  is  therein  represented  to  be,  and 
that  he  believes  the  signature  of  such  person  subscribed  thereto 
to  be  genuine,  and  that  the  deed  is  executed  and  acknowledged 
according  to  the  laws  of  such  State,  Territory,  or  District. 


CHAPTER  XX. 
LIMITED  PARTNEESHIPS. 


Limited  partnerships  for  the  transaction  of  mercantile, 
mechanical  and  manufacturing  business  may  be  formed  in  this 
State.  The  persons  forming  such  partnership  make  and  severally 
subscribe  and  acknowledge  a  certificate  in  duplicate,  which  con- 
tains t'  ^  name  assumed  by  the  partnership,  the  names  and  re- 
spective places  of  residence  of  all  the  general  and  specip'  partners, 
the  amount  of  capital  which  each  special  partner  contributes,  the 


Chap.  20.]. 


OREaON. 


187 


general  nature  of  the  business  to  be  transacted,  and  the  time 
when  the  partnership  is  to  commence  and  terminate;  one  copy 
of  such  certificate  is  filed  with  the  clerk  of  the  county  in  which 
the  principal  place  of  business  of  the  partnership  is  to  be.  A 
copy  of  the  same  is  required  to  be  published  for  four  weeks  in 
some  weekly  newspaper  published  in  the  county.  The  business 
must  be  conducted  under  a  name  in  which  the  names  of  the  gen- 
eral partners  only  shall  be  inserted,  without  the  addition  of  the 
word  company,  or  any  other  general  term. 

Spe  ial  partners  are  not  personally  liable  for  any  debts  of  the 
partnership. 

During  the  continuance  of  any  such  partnership  no  part  of 
the  capital  stock  can  be  withdrawn,  nor  any  division  of  interests 
or  profits  made,  so  as  to  reduce  such  capital  stock  below  the  sum 
stated  in  the  certificate. 


CHAPTER  XXI. 


MAREIED  WOMEN. 


The  constitution  of  the  State  provides  that  the  property  and 
pecuniary  rights  of  every  married  wouian  at  the  time  of  marriage, 
or  afterwards  acquired  by  gift,  devise  or  inheritance,  shall  not 
be  subject  to  the  debts  or  contracts  of  the  husband,  and  laws 
shall  be  passed  providing  for  the  registration  of  personal  prop- 
erty; which  has  been  done.  The  property,  both  real  and  per- 
sonal, acquired  by  any  married  woman  during  coverture,  is  free 
from  and  not  liable  for  the  debts,  liabilities  or  contracts  of  her 
husband. 


'» 
^e 


'.  / 


188 


OREGON. 


[Part  5. 


CHAPTER  XXII. 
CORPORATIONS. 

Corporations  are  only  forme''  under  general  laws,  and  cannot 
be  created  by  special  laws. 

The  stockholders  of  all  corporations  and  joint  stock  com- 
paniet  are  liable  for  the  indobtedness  of  such  corporations  to 
the  amount  of  their  stock  subscribed  and  unpaid,  and  no  more. 

No  bank,  banking  company  or  moneyed  institution  can  be 
created  under  the  laws  of  this  State;  nor  can  any  bank,  com- 
pany or  institution  exist  in  the  State  with  the  privilege  of  mak- 
ing, issuing,  or  putting  in  circulation  any  bill,  check,  certificate, 
promissory  note  or  other  paper,  or  the  paper  of  any  bank,  com- 
pany or  person,  to  circulate  as  money. 


CHAPTER  XXIII. 


CHATTEL  MORTGAGES. 


Chattel  mortgages  are  valid  against  third  parties  when  the 
property  is  retained  in  the  possession  of  the  mortgagor,  pro- 
vided the  mortgage  or  a  copy  thereof  is  filed  in  the  office  of  the 
county  clerk.  Such  mortgage,  however,  ceases  to  be  valid  as 
against  creditors  and  subsequent  purchasers,  or  mortgagors  in 
good  faith,  after  the  expiration  of  one  year  from  the  filing  of 
the  same,  uiJess  within  thirty  d  lys  preceding  the  expiration  of 
the  year  an  affidavit,  setting  forth  the  interest  which  the 
mortgagee  has  in  the  property  by  virtue  of  such  mortgage,  is 
made  and  annexed  to  the  instrument  or  copy  on  file.  The  eifect 
of  such  affidavit  does  not  continue  beyond  one  year,  when  a 
similar  affidavit  must  be  made. 


Chap.  24.] 


OREGON. 


189 


CHAPTER  XXIV. 
INTEBEST  AKD  USXJEY. 

Ten  per  cent,  per  annum  is  the  legal  rate  of  interest;  but  on 
contracts,  interest  at  the  rate  of  one  per  cent,  per  month  may  be 
charged  by  express  agrtement  of  the  parties. 

Usu^  entails  the  forfeiture  of  the  principal  sum,  without 
interest,  to  the  school  fund  of  the  county  in  which  the  suit  is 
brought. 


i 


CHAPTER  XXV. 

INSOLVENCY. 
There  is  no  insolvent  law  in  this  State. 


PART  VI. 

IDAHO  TERRITORY. 


PREPAEED  EXPRESSLY  FOR  THIS  WORK  BY  JONAS  W.  BROWN 

IDAHO  CITY.  ' 


CHAPTER  I. 
cduETS,  THEIR  JUEISDICTION  AND  TERMS. 

The  judicial  power  of  the  Territory  is  vested  in  a  Supreme 
Court,  three  District  Courts,  Probate  Courts  for  each  county 
and  Justices  of  the  Peace.  ' ' 

The  Supreme  Court 
Has  appellate  jurisdiction  in  all  civil  cases  where  the  amount  in 
dispute  exceeds  in  value  one  hundred  dollars,  and  in  all  criminal 
cases  tned  in  District  Courts.     Meets  at  Boise  City  annually,  on 
the  first  Monday  of  January. 

District  Courts 
Have  original  jurisdiction  in  all  civil  cases  where  the  amount  in 
dispute  exceeds  one  hundred  dollars,  and  in  all  criminal  cases 
prosecuted  by  indictment.     Their  appellate  jurisdiction  extends 
to  hearing  all  cases  on  appeal  from  Probate  Courts  and  Justices' 


192 


IDAHO. 


[Part  6. 


Courts.  They  have  exclusive  jurisdiction  in  all  equity  cases, 
and  in  all  cases  involving  the  title  to  real  estate. 

The  terms  of  the  District  Courts  are  fixed  annually  for  the 
several  counties  by  the  Supreme  Court. 

The  Probate  Coubts 

Have  jurisdiction  of  all  probate  matters,  same  as  in  California. 
They  have  also  concurrent  jurisdiction  (by  special  act  of  Con- 
gress) with  the  District  Courts  in  all  civil  actions,  when  the 
amount  in  controversy  shall  not  exceed  five  hundred  dollars, 
exclusive  of  interest ;  and  the  same  rules  of  practice  govern  in 
Probate  Courts  in  civil  cases  as  in  the  Districts  Courts,  except 
in  the  matter  of  appeals  to  the  District  Court.  The  terms  of 
the  Probate  Courts  commence  on  the  fourth  Monday  in  each 
month. 

Justices'  Courts 

Have  jurisdiction  in  all  civil  actions  where  the  sum  or  damages 
claimed  do  not  exceed  one  hundred  dollars,  excepting  matters 
where  the  boundaries  of  land  are  in  dispute.  These  Courts  are 
always  open  for  business. 


CHAPTER  11. 


COMMENCEMENT  OF  ACTIONS. 


n 


Civil  actions  in  the  District  Courts  and  the  Probate  Courts  shall 
be  commenced  by  the  filing  of  a  complaint  with  the  clerk  of  the 
Court  in  whioh  the  action  is  brought :  provided,  that  after  the 
filing  of  the  complaint,  a  defendant  in  the  action  may  appear, 
answer  or  demur,  whether  the  sumn.ons  has  been  issued  or  not, 
and  such  appearance,  answer,  or  de  nurrer  be  deemed  a  waiver 
of  summons. 

The  clerk  shall  endorse  on  the  complaint  the  day,  month  and 
year  the  same  is  filed;  and  at  any  iime  within  one  year  after  the 
filing  of  the  same,  the  plaintiff  liay  have  a  summons  issued. 


I  : 


Chap.  2.] 


IDAHO. 


193 


The  act  defining  jnrisdiction  of  Probate  Courts  provides  that 
the  summons  may  be  issued  at  any  time  within  six  months  from 
the  filing  of  the  complaint. 

In  the  District  Court  the  defendant  must  answer  in  ten  days, 
if  served  within  the  county  in  which  the  action  is  brought;  in 
twenty  days,  if  served  without  the  county,  but  within  the  judi- 
cial district  in  which  the  action  is  brought.  In  all  other  cases, 
thirty  days.  In  the  Probate  Court,  answer  must  be  filed  in  ten 
days. 


CHAPTER  III. 


PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 


Actions  for  the  following  causes  shall  be  tried  in  the  county 
in  which  the  subject  of  the  action,  or  some  part  thereof,  is  situ- 
ated, subject  to  the  power  of  the  Court  to  change  the  place  of 
trial:  .       '    r- 

1.  For  the  recovery  of  real  projjerty,  or  of  an  estate  or  in- 
terest therein,  or  )or  the  determination,  in  any  form,  of  such 
right  or  interest,  or  for  injuries  to  real  property. 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  a  mortgage  of  real  property;  pro- 
vided, when  such  real  property  is  situate  partly  in  one  count}' 
and  partly  in  another,  the  plaintiff  may  select  either  of  said 
counties,  and  the  county  so  selected  shall  be  the  proper  county 
for  the  trial  of  such  action. 

Actions  for  the  following  causes  shall  be  tried  in  the  county 
where  the  cause,  or  some  part  thereof,  arose;  subject  to  the  like 
power  of  the  Court  to  change  the  place  of  trial : 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imjjosed  lya 
statute,  except  that  when  it  is  imposed  for  an  offense  committed 
on  a  lake,  river,  or  other  stream  of  water  situated  in  two  or  more 
counties,  the  action  may  be  brought  in  any  county  bordering  on 


194 


IDAHO. 


[Part  6. 


li 


uch  lake,  river,  or  other  stream,  and  opposite  the  place  where 
the  offense  was  committed. 

2.  Against  a  public  officer,  or  person  especially  appointed  to 
execute  his  duties,  for  an  act  done  by  him  in  virtue  of  his  office, 
or  against  a  person  who,  by  his  command,  or  in  his  aid,  does 
anything  touching  the  duties  of  such  officer. 

In  all  other  cases,  the  action  shall  be  tried  in  the  county  in 
which  the  defendants,  or  any  of  them,  may  reside  at  the  com- 
mencement of  the  action;  or  if  none  of  the  defendants  reside  in 
this  Territory,  or,  if  residing  in  this  Territory,  the  county  in  which 
they  so  reside  be  unknown  to  the  plaintiff,  the  same  may  be  tried 
in  any  county  which  the  plaintiff  may  designate  in  his  complaint; 
and  if  any  defendant  or  defendants  may  be  about  to  depart  from 
the  Territory,  such  action,  may  be  tried  in  any  county  where 
either  of  the  parties  reside  or  may  be  found,  or  service  be  had; 
subject,  however,  to  the  power  of  the  Court  to  change  the  place 
of  trial,  as  provided  in  the  act. 


CHAPTER  IV. 


LIMITATIONS  OF  CIVIL  ACTIONS. 

Six  Years: 

Real  estate,  including  quartz  mines  or  lodes,  judgments  or  de- 
crees of  any  Court  of  the  "United  States,  or  of  any  State  or  Ter- 
ritory of  the  United  States. 


Mve  Years: 

Any  contract,  obligation,  or  liability  founded  upon  an  instru- 
ment of  writing. 

Ibur  Years: 

Contract  or  liability  not  founded  upon  an  instrument  of 
writing;  including  accounts. 


Chap.  4.] 


IDAHO. 


196 


Three  Years:  •    • 

Trespass  upon  real  property,  taking  detaining  or  injuring 
goods  or  chattels  or  for  the  specific  recovery  of  personal  property. 
Belief  on  ground  of  fraud. 

7\oo  Years : 

Against  a  sheriff,  coroner,  or  constable  upon  the  liability  in- 
curred by  the  doing  of  an  act  officially,  or  the  omission  of  an 
official  duty ;  for  non-payment  of  money  collected  on  execution  ; 
for  libel,  slander,  assault,  battery  and  false  imprisonment. 
Upon  statute  forfeiture  and  against  sheriflf  or  other  officer  for 
escape  of  prisoner  aiTested  or  imprisoned  on  civil  process. 


One    Year : 


Placer  mining  claims. 


e- 


•u- 


Qeneral  Provisions. 

An  action  upon  any  contract,  obligation  or  liability  for  the 
payment  of  money,  founded  upon  an  instrument  of  writing 
executed  out  of  this  Territory,  or  any  other  Territory  from  which 
this  Territory  is  in  part  formed  can  only  be  commenced  as  follows : 

1.  Within  one  year,  when  more  than  two  and  less  than  five 
years  have  elapsed  since  the  cause  of  action  accrued. 

An  action  upon  any  judgment,  contract,  obligation  or  liability 
for  the  imyment  of  money  or  damages,  obtained,  executed,  or 
made  out  of  this  Territory,  or  any  other  Territory  from  which 
this  Territory  is  in  part  formed,  shall  only  be  commenced  within 
three  years  after  the  party  making  such  liabilities  shall  be  a 
resident  of  this  Territory, 

No  acknowledgment  of  promise  shall  be  sufficient  evidence  of 
a  new  or  continuing  contract,  whereby  to  take  the  case  out  of  the 
operation  of  the  statute,  unless  the  same  be  contained  in  some 
writing  signed  by  the  party  to  be  charged  thereby. 


of 


196 


IDAHO. 


[Part  6. 


CHAPTER  V. 


ATTACHMENTS. 


The  plaintifif,  at  the  time  of  issuing  the  summons,  or  at  any 
time  afterward,  may  have  the  property  of  the  defendant  at- 
tached as  security  for  the  satisfaction  of  any  judgment  that  may 
be  recovered,  unless  the  defendant  give  security  to  pay  such 
judgment,  in  the  following  cases : 

1.  In  an  action  upon  a  contract,  express  oi  implied,  for  the 
direct  payment  of  money,  which  contract  is  not  secured  by  a 
mortgage,  lien,  or  pledge  upon  real  or  jiersonat  property;  or  if 
so  secured,  that  such  security  has,  without  any  act  of  the  plain- 
tiff, or  the  person  to  whom  the  security  was  given,  become 
valueless. 

2.  In  an  action  upon  a  contract,  express  or  imj)]ied,  against  a 
defendant  not  residing  in  this  Territory. 

The  Clerk  of  the  Court  shall  issue  the  writ  of  attachment 
upon  receiving  an  affidavit  by  or  on  behalf  of  the  plaintiff, 
which  shall  be  filed  setting  forth — 

1.  That  the  defendant  is  indebted  to  the  plaintiff,  specifying 
the  amount  of  such  indebtedness  over  and  above  all  legal  set- 
offs and  counter-claims,  upon  a  contract,  express  or  implied,  for 
the  direct  payment  of  money;  and  that  the  payment  of  the  same 
has  not  been  secured  by  any  mortgage,  lien  or  pledge  upon 
real  or  personal -property;  or,  if  so  secured,  that  such  security 
has,  without  any  act  of  the  plaintiff,  or  the  person  to  whom  the 
security  was  given,  become  valueless;  or, 

2.  That  the  defendant  is  indebted  to*  the  plaintiff,  specifying 
the  amount  of  the  indebtedness  as  near  as  may  be,  over  and 
above  all  legal  set-offs  and  counter-claims,  and  that  the  defend- 
ant is  a  non-residont  of  the  Teriitory;  and, 

3.  That  the  attachment  is  not  sought,  and  the  action  is  not 
prosecuted,  to  hinder,  delay,  or  defraud  any  creditor  or  credit- 
ors of  the  defendant. 

Before  issuing  the  writ,  the  clerk  must  require  a  written  un- 


Chap.  5.] 


IDAHO. 


197 


dertaking  on  the  part  of  the  plaintiff,  in  a  sum  not  less  than  two 
hundred  dollars,  and  not  exceeding  the  amount  claimed  by  the 
f'  intiff,  with  sufficient  sureties,  to  the  effect  that  if  the  defend- 
ant recover  judgment,  the  plaintiff  will  pay  all  costs  that  he  may 
sustain  by  reason  of  the  attachment,  not  exceeding  the  sum 
specified  in  the  undertaking,  if  the  attachment  be  wrongfully  is- 
sued. 


CHAPTER  VI. 

ARREST  IN  CIVIL  ACTION.       ^ 

The  defendant  may  be  an-ested,  as  hereinafter  provided,  in 
the  following  cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a 
cause  of  action  arising  upon  contract,  express  or  implied,  when 
the  defendant  is  about  to  depart  from  the  Territory,  with  intent 
to  defraud  his  creditors;  or  v/hen  the  action  is  for  willful  injury 
to  person,  to  character,  or  to  property,  knowing  the  property  to 
belong  to  another. 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry, 
or  for  money  or  property  embezzled,  or  fraudulently  applied,  or 
converted  to  his  own  use  by  a  public  officer,  or  an  officer  of  a 
corporation,  or  an  attorney,  factor,  broker,  agent,  or  clerk,  in 
the  course  of  his  employment  as  such,  or  by  any  other  person  in 
a  fiduciary  capacity,  or  for  misconduct  or  neglect  in  office,  or  in 
a  professional  employment,  or  for  a  willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property,  or  any  part  thereof,  has 
been  concealed,  removed,  or  disposed  of,  to  prevent  its  being 
found  or  taken  by  the  sheriff. 

4.  When  the  defendant  has  been  guilty  of  fraud  in  contract- 
ing the  debt  or  incurring  the  obligation  for  which  the  action  is 
broughi,  or  in  concealing  or  disposing  of  the  property,  for  the 
taking,  detention,  or  conversion  of  which  the  action  is  brought. 


irl 

M 


198 


IDAHO. 


[Part  6. 


5.  When  the  defendant  has  removed  or  disposed  of  his  prop- 
erty, or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

To  obtain  an  order  of  arrest,  it  must  appear  to  the  judge,  by 
the  affidavit  of  the  plaintiff  or  some  other  person,  that  a  suffi- 
cient cause  of  action  exists,  and  that  the  case  is  one  of  those 
above  mentioned.  The  affidavit  must  be  positive,  or  upon  infor- 
mation and  belief.  Before  making  an  order,  the  judge  must 
require  a  written  undertaking  on  the  part  of  plaintiff,  with  sure- 
ties in  an  amount  to  be  fixed  by  the  judge,  which  must  be  at 
least  five  hundred  dollars. 


CHAPTER  VII. 


JUl^GMENTS  AND  JUDGMENT  LIENS. 


In  an  action  on  a  contract  or  obligation,  in  writing,  for  the 
direct  payment  of  money,  made  payable  in  a  specified  kind  of 
money  or  currency,  judgment  for  the  plaintiff  may  follow  the 
contract  or  obligation,  and  be  made  payable  in  the  kind  of 
money  or  currency  specified  therein. 

From  the  time  the  judgment  is  docketed  it  becomes  a  lien  upon 
all  the  real  property  of  the  judgment  debtor,  not  exempt  from 
execution  in  the  county,  owned  by  him  at  the  time,  or  which  he 
may  afterward.^  acquire,  until  the  lien  expires.  The  lien  con- 
tinues for  two  years. 

A  transcript  of  the  original  docket,  certified  by  the  clerk,  and 
filed  with  the  recorder  of  any  otlier  county,  becomes  a  lien  on 
the  property  of  the  judgment  debtor  in  such  county,  and  con- 
tinues for  two  years. 

A  transcript  of  a  judgment  of  a  Probate  Court,  filed  and 
docketed  in  the  office  of  the  district  clerk,  becomes  a  lien  upon 
the  real  estate  of  the  judgment  debtor  for  two  years  from  date 
of  filing  and  docketing. 

A  transcript  of  a  judgment  of  a  justice  of  the  peace  becomes 


Chap.  7.1 


IDAHO. 


199 


a  lien  upon  real  estate  by  being  filed  and  recorded  in  the  county 
recorder's  office.  By  filing  and  docketing  same  in  district 
clerk's  office,  the  clerk  may  issue  execution  to  any  other  county 
in  the  Territory. 


CHAPTER  VIII. 


EXECUTIONS,   EXEIIPTIONS,   SALE   AND    KEDEMP- 

TION. 


and 


A  writ  of  execution  to  enforce  the  judgment  may  be  issued  at 
any  time  within  five  years  after  the  entry  thereof.  In  all  cases 
other  than  for  the  recovery  of  money,  the  judgment  may  be  en- 
forced or  carried  into  execution  after  the  lapse  of  five  years  from 
the  date  of  its  entry,  by  leave  of  the  Court,  upon  motion  or  by 
judgment  for  that  purpose,  founded  upon  supplemental  plead- 
ings. 

Exemptions  from  Execution. 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  one  hun- 
dred dollars,  belonging  to  the  judgment  debtor. 

2.  Necessary  household,  table  and  kitchen  furniture  belong- 
ing to  the  judgment  debtor,  including  stove,  stovepipe,  and 
stove  furniture  of  whatever  kind,  wearing  apparel,  beds,  bed- 
ding and  bedsteads,  and  provisions  actually  provided  for  indi- 
vidual or  family  use  sufficient  for  three  months. 

3.  The  farming  utensils  or  implemen'^s  of  husbandry  of  the 
judgment  debtor;  also,  two  oxen,  or  two  horses,  or  two  mules, 
and  their  harness;  two  cows,  one  cart  or  wagon,  and  food  for 
such  oxen,  horses,  cows  or  mules  for  three  months*  also,  all 
seed  grain  or  vegetables  actually  provided,  reserved,  or  on  hand 
fv  r  the  purpose  of  i)lauting  or  sowing  at  any  time  within  the 
ensuing  six  months,  not  exceeding  in  value  the  sum  of  two 
hundred  dollars;  the  tools  and  inplements  of  a  mechanic  neces- 
sary to  carry  on  his  trade;  the  instruments  and  ehests  of  a 
surgeon,  physician,  surveyor,  and  dentist  necessary  to  the  exer- 


..<...  ^\v^ 


%"»; 


.>,& 


IDAHO. 


[Part  6. 


cise  of  their  profession,  with  the  professional  library^  and  the 
law  libraries  of  an  attorney  and  counsellor;  also,  the  wardrobe 
and  books  of  an  actor. 

4.  The  tents  and  furniture,  including  a  table,  camp  stools, 
bed  and  bedding  of  a  miner;  also  his  rocker,  /shovels,  spades, 
wheelbarrows,  pumps,  and  other  instruments  used  in  mining, 
with  provisions  necessary  for  his  support  for  three  months. 

5.  Two  oxen,  two  norses,  or  two  mules,  and  their  harness, 
and  one  cart  or  wagon,  by  the  use  of  which  a  cartman,  team- 
ster, or  other  laborer  habitually  earns  his  living,  and  the  food 
for  such  oxen,  horses,  or  mules,  for  three  months;  and  a  horse 
used  by  a  physician  in  making  his  professional  visits. 

6.  All  fire  engines,  with  carts,  buckets,  hose,  and  apparatus 
thereto  appertaining,  of  any  fire  company  or  department  organ- 
ized under  any  law  of  this  Territory. 

7.  All  arms  and  accoutrements  required  by  law  to  be  kept  by 
any  person. 

8.  All  court-houses,  jails,  public  offices  and  buildings,  lots, 
ground  and  personal  property,  the  fixtures,  furniture,  books, 
papers,  and  appurtenances  belonging  to  any  county  in  this 
Territory;  and  all  cemeteries,  public  squares,  parks  and  public 
buildings,  town  halls,  markets,  buildings  appertaining  to  the 
fire  departments,  and  the  lots  and  grounds  thereto  belonging 
and  appertaining,  owned  or  held  by  any  town  or  incorporated 
city,  or  dedicated  by  such  town  or  city  to  health,  ornament,  or 
public  use. 

No  article  above  mentioned  shall  be  exempt  from  execution 
issued  upon  a  judgment  recovered  for  its  price,  or  upon  a  mort- 
gage thereon. 

Sale  of  Property  Under  Execdtion, 

In  case  of  perishable  property,  by  posting  written  notices  of 
the  time  and  place  of  sale  in  three  public  places  of  the  precinct, 
for  a  reasonable  time,  considering  the  condition  of  property.  In 
case  of  other  personal  property,  by  posting  similar  notices  in 
three  public  places  of  the  precinct,  township  or  city  whei-e  the 
sale  is  to  take  place,  not  less  than  five,  nor  more  than  ten  days 
successively.  In  case  of  real  property,  by  posting  similar 
notices,  particularly  describing  the  proj)erty,  for  twenty  days 


Chap.  8]. 


ID.' HO. 


201 


successively,  in  three  public  places  of  the  precinct,  township,  or 
city  where  the  property  is  situated,  and  also  where  the  property 
is  to  be  sold,  and  publishing  a  copy  thereof  once  a  week  for  the 
same  period  in  some  newspaper  published  in  the  county,  if  there 
be  one.  All  sales  of  property  under  execution  shall  be  made  at 
auction  to  the  highest  bidder,  and  shall  be  made  between  the 
hours  of  nine  in  the  morning  and  five  in  the  afternoon. 

Redemption. 

Real  estate  sold  on  execution  under  a  judgment,  or  upon 
foreclosure  of  mortgage  or  mechanic's  liens,  may  be  redeemed 
within  six  months  from  the  date  of  the  sale,  either  by  the  judg- 
ment debtor  or  his  successor  in  interest  in  the  whole  or  any  part 
of  the  property,  or  by  a  creditor  having  a  lien  by  judgment  or 
mortgage  on  the  property  sold,  by  paying  to  the  purchaser  the 
amount  of  his  purchase  with  eighteen  per  cent,  thereon  in  addi- 
tion.    The  purchaser  is  entitled  to  the  rents,  issues,  and  profits. 


CHAPTER  IX. 


PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 


After  return  of  execution  unsatisfied,  the  judgment  debtor 
may  be  required  to  answer  concerning  his  property. 

A  judgment  debtor  unjustly  refusing  to  apply  property  which 
he  has  to  the  satisfaction  of  a  judgment  against  him,  may  be 
required  to  appear  amd  answer  concerning  the  same. 

After  the  issuing  or  return  of  execution,  or  upon  proof  by 
affidavit  or  otherwise,  to  the  satisfaction  of  the  judge,  that  any 
person  or  corporation  has  property  of  judgment  debtor,  or  is 
indebted  to  him  in  an  amount  exceeding  fifty  dollars,  such 
person  or  corporation  may  be  required  to  appear  and  answer 
concerning  same. 


202 


IDAHO. 


[Part  6. 


CHAPTER   X. 

SECURITY  FOR  COSTS. 

When  the  plaintiff  in  an  action  resides  out  of  the  Territory, 
or  is  a  foreign  coporation,  security  for  costs  and  charges  that 
may  be  awarded  against  such  plaintiff  may  be  required  by  the 
defendant.  When  required,  all  proceedings  shall  be  stayed 
until  an  undertaking,  as  required,  be  filed  to  pay  all  costs,  not 
exceeding  the  sum  of  three  hundred  dollars,  with  two  sureties. 
If  such  security  be  not  given  within  thirty  days  from  the  service 
of  notice  that  security  is  required,  the  Court  may  order  the 
action  dismissed. 


CHAPTER  XI. 


APPEALS  m  GENERAL. 


An  appeal  may  be  taken:  1.  From  a  final  judgment  in  an 
action  or  special  proceeding,  commenced  in  the  Court  in  which 
the  judgment  is  rendered,  within  one  year  after  the  eutry  of 
judgment.  But  an  exception  to  the  decision  or  verdict,  on  the 
ground  that  it  is  not  supported  by  the  evidence,  cannot  be  re- 
viewed on  appeal  from  the  judgment,  unless  the  appeal  is  taken 
within  sixty  days  after  the  rendition  of  the  judgment. 

2.  From  a  judgment  rendered  by  a  Probate  or  Justice's  Court, 
within  twenty-ons  days  from  the  entry  of  judgment. 

3.  From  an  order  granting  or  refusing  a  new  trial;  from  an 
order  granting  or  dissolving  an  injunction;  from  an  order  refus- 
ing to  grant  or  dissolve  an  injunction;  from  an  order  dissolving 
or  r^'us'tUg  to  dissolve  an  attachment;  from  an  order  granting  or 
refusing  to  grant  a  change  of  the  place  of  trial;  from  any  special 
order  made  after  final  judgment,  and  from  an  interlocutory 
judgment  in  actions  for  partition  of  real  property,  within  thirty 
days  after  the  order  or  interlocutory  judgment  is  made  and  en- 
tered in  the  minutes  of  the  Court,  or  filed  with  the  clerk. 


Chap,  11.] 


IDAHO. 


208 


In  the  District  Court,  an  undertaking  must  be  filed  on  the 
part  of  the  appellant  by  at  least  two  sureties,  to  the  effect  that 
the  appellant  will  pay  all  the  damages  and  costs,  not  exceeding 
three  hundred  dollars;  or  that  sum  must  be  deposited  with  the 
clerk. 

If  a  stay  of  proceedings  is  desired,  an  undertaking  in  double 
the  amount  of  the  judgment  and  costs  must  be  filed. 

In  the  Probate  and  Justices'  Courts,  appeals  are  allowed  in 
all  cases  where  the  demand,  exclusive  of  interest,  or  the  value  of 
the  property  in  controversy  amounts  to  twenty-five  dollars. 

Appeals  in  Probate  and  Justices'  Courts  mast  be  taken  in 
twenty  days  from  the  rendition  of  the  judgment. 


CHAPTER  XII. 


HOMESTEADS. 


The  homsetead  consisting  of  a  quantity  of  land,  together  with 
the  dwelling  house  thereon  and  its  appurtenances,  not  exceed- 
ing in  value  the  sum  of  five  thousand  dollars,  to  be  selected  by 
the  husband  and  wife,  or  either  of  them,  or  other  head  of  a 
family,  shall  not  be  subject  to  forced  sale  in  execution,  or  any 
final  process  from  any  Court. 

The  person  or  persons  claiming  a  homestead  shall  do  so  by 
written  declaration,  setting  forth  that  they,  or  either  of  them, 
are  married,  or  if  not  married,  that  he  or  she  is  the  head  of  a 
family  ;  that  they  or  either  of  them,  as  the  case  may  be,  are,  at 
the  time  of  making  such  declaration,  residing  with  their  family, 
or  with  the  person  under  their  care  and  maintenance,  on  the 
premises,  particularly  describing  said  premises,  and  it  is  their 
intention  to  use  and  claim  the  same  as  a  homestead,  which 
declaration  shall  be  signed  by  the  party  making  the  same,  and 
acknowledged  and  recorded  in  the  ofl&ce  of  the  county  recorder. 
Such  exemption  shall  not  extend  to  any  mechanic's,  laborer's  or 
vendor's  lien,  lawfully  obtained,  nor  to  a  mortgage  or  alienation 


204 


IDAHO. 


[Part  6. 


to  secure  the  purchase  money  or  pay  the  purchase  money,  if  the 
signature  of  the  wife  be  obtained  to  the  same,  and  acknowledged 
by  her  btparate  and  apart  from  her  husband. 


CHAPTER  XIII. 


ESTATES  OF  DECEASED  PERSONS. 


Everj  executor  or  administrator  shall,  immediately  after  his  ap- 
pointment, cause  to  be  published  in  some  newspaper  published 
in  the  county — if  there  be  one  ;  if  not,  then  in  such  newspaper  as 
may  be  designated  by  the  Court — a  notice  to  the  creditors  of 
the  deceased  requiring  all  persons  having  claims  against  the 
deceased  to  exhibit  them,  with  the  necessary  vouchers,  within 
ten  mi»nths  after  the  first  publication  of  the  notice  to  such 
executor  or  administrator,  at  the  place  of  his  residence  or  trans- 
action of  business,  to  be  specified  in  the  notice. 

If  a  claim  be  not  presented  within  ten  months — unless  the 
value  of  the  estate  does  not  exceed  fifteen  hundred  dollars ;  in 
which  case  notice  to  creditors  shall  be  given  to  present  their 
claims  within  four  months — after  the  first  publication  of  the 
notice,  it  shall  be  barred  forever ;  provided,  if  it  be  not  then 
due,  or  if  it  be  contingent,  it  may  be  presented  within  ten 
months  after  it  shall  become  due  or  absolute  :  and  provided 
further,  that  when  it  shall  be  made  to  appear  by  the  afidavit  of 
the  claimant,  to  the  satisfaction  of  the  executor  or  administrator 
and  the  probate  judge,  that  the  claimant  had  no  notice,  as  pro- 
vided in  this  act,  by  reason  of  absence  from  this  Territory,  it 
may  be  presented  at  any  time  before  a  decree  of  distribution  is 
entered. 

Every  claim  presented  to  the  administrator  shall  be  supported 
by  the  aflfidavit  of  the  claimant  that  the  amount  is  justly  due, 
that  no  payments  have  been  made  thereon,  and  that  there  are  no 
oflf-sets  to  the  same  to  the  knowledge  of  the  claimant  or  affiant : 
provided,  that  when  the  affidavit  is  made  by  any  other  person 


Chap.  13.] 


IDAHO. 


205 


than  the  claimant,  he  shall  set  forth  in  the  affidavit  the  reason 
it  is  not  made  by  the  claimant.  The  oath  may  be  taken  before 
any  officer  authorized  to  administer  oaths.  (If  the  claimant  is  a 
n(»n-resident,  the  affidavit  must  be  made  before  a  judge  or  clerk 
of  a  Court  having  a  seal,  or  a  commissioner  for  Idaho  Territory.) 
The  executor  or  administrator  shall  also  require  satisfactory 
vouchers  or  proofs  to  bo  produced  in  support  of  the  claim. 

The  amount  of  interest  shall  be  computed  and  included  in 
the  statement  of  the  claim,  and  the  rate  of  interest  determined  ; 
provided,  that  no  claim  which  shall  have  been  due  and  payable 
thirty  days  prior  to  the  death  of  the  deceased  shall  bear  greater 
interest  than  ten  per  cent,  per  annum  from  and  after  the  time 
of  issuing  letters. 

When  a  claim,  accompanied  by  the  affidavit  required,  has 
been  presented  to  the  executor  or  administrator  he  shall  en- 
dorse thereon  his  allowance  or  rejection,  with  the  day  and  date 
thereof.  If  he  allow  the  claim,  it  shall  be  presented  to  the 
judge  for  his  approval,  who  shall  in  the  same  manner  endorse 
upon  it  his  allowance  or  rejection. 

If  the  executor  or  administrator,  or  the  judge,  refuse  or 
neglect  to  endorse  such  allowance  or  rejection  for  ten  days  after 
the  claim  shall  have  been  presented  to  him,  such  refusal  or 
neglect  shall  be  deemed  a  rejection;  if  allowed  and  approved, 
it  must  be  filed  in  the  Probate  Court  within  thirty  days. 

If  the  claim  be  founded  on  a  bond,  bill,  note,  or  other  instru- 
ment, the  original  instrument  shall  be  presented,  and  the  allow- 
ance and  approval,  or  rejection,  shall  be  endorsed  thereon  or 
attached  thereto. 

If  the  claim,  or  any  part  thereof,  be  secured  by  a  mortgage 
or  other  lien,  such  mortgage  or  evidence  of  lien  shall  be  at- 
tached to  the  claim  and  tiled  therewith,  unless  the  same  be  re- 
corded in  the  office  of  the  recorder  of  the  county  in  which  the 
land  lies;  in  which  case  it  shall  be  sufficient  to  describe  the 
mortgage  or  lien,  and  refer  to  the  date,  volume  and  page  of  its 
record. 

In  all  cases  the  claimant  may  withdraw  bis  claim  from  file  on 
leaving  a  certified  copy,  with  a  receipt  endorsed  thereon,  by 
himself  or  his  agent.     If  the  original  instrument  be  lost  or  de- 


206 


IDAHO. 


[Part  6. 


stroyed,  then,  in  lieu  thereof,  the  claimant  shall  be  required  to 
file  his  affidavit  particularly  describing  such  instrument,  and 
stating  the  loss  or  destruction  thereof. 

When  a  claim  is  rejected,  either  by  the  executor  or  admin- 
istrator or  probate  judge,  the  holder  shall  bring  suit  in  the 
proper  Court  against  the  executor  or  administrator,  within  three 
months  after  the  date  of  its  rejection,  if  it  be  then  due,  or  with- 
in three  months  after  it  becomes  due,  otherwise  the  claim  she'' 
be  forever  barred. 

No  claim  shall  be  allowed  which  is  larred  by  the  statute  ox 
limitations. 

The  executor,  administrator  or  probate  judge  may  allow  a 
claim  in  part,  and  if  the  claimant  fail  to  recover  a  greater  sum 
he  is  allowed  no  costs. 

The  debts  of  the  estate  are  paid  in  the  following  order: 

1.  Funeral  expenses. 

2.  The  expenses  of  the  last  sickness. 

3.  Debts  having  preference  by  the  laws  of  the  United  States. 

4.  Judgments  rendered  against  the  deceased  in  his  lifetime, 
and  mortgages  in  the  order  of  their  date. 

5.  All  other  demands  against  the  estate. 

The  mortgages  in  preference  extend  only  to  the  proceeds  of 
the  property  mortgaged;  any  deficiency  must  be  classified  and 
paid  under  the  fifth  head. 

Executors  and  administratois  should  make  a  settlement  of  the 
estate  at  the  expiration  of  one  year;  except  where  the  value  of 
the  estate  does  not  exceed  fifteen  hundred  dollars,  the  Court  may 
order  the  estate  settled  in  six  months. 


Chap.  14.] 


IDAHO. 


207 


CHAPTER  XIV. 


DEPOSITIONS. 


The  deposition  of  a  witness  in  this  Territory,  who  is  a  party  to 
the  action  or  proceeding;  or  who  resides  out  of  the  county,  or  is 
about  to  leave  the  county  where  the  action  is  to  be  tried;  or  is 
too  infirm  to  attend  the  trial;  or  when  the  testimony  is  required 
upon  a  motion,  or  in  any  other  case  where  the  oral  examination 
of  the  witness  is  not  required,  may  be  taken  by  either  party,  be- 
fore any  judge  or  clerk,  or  any  justice  of  the  peace,  or  notary 
public  in  this  Territory,  on  serving  upon  the  adverse  party  pre- 
vious notice  of  the  time  and  place  of  the  examination,  together 
with  a  copy  of  an  affidavit,  showing  that  the  case  is  one  of  the 
above  mentioned.  Such  notice  shall  be  at  least  five  days,  and 
in  addition  one  day  for  every  twenty-five  miles  of  the  distance  of 
the  place  of  examination  from  the  residence  of  the  person  to 
whom  the  notice  is  given,  unless  a  shorter  time  is  prescribed  by 
the  judge. 

The  deposition  of  a  witness  out  of  this  Territory  may  be 
taken  upon  commission  issued  from  the  Court,  under  the  seal  of 
the  Court,  upon  an  order  of  the  judge  or  Court,  or  probate 
judge,  on  the  application  of  either  party,  upon  five  days'  notice 
to  the  other.  If  issued  to  any  place  within  the  United  States, 
it  may  be  directed  to  a  person  agreed  upon  by  the  parties,  or  if 
they  do  not  agree,  to  any  judge  or  justice  of  the  peace,  or  com- 
missioner seleoted  by  the  officer  issuing  it. 

If  issued  to  any  country  out  of  the  United  States,  it  may  be 
directed  to  a  minister,  ambassador,  consul,  vice  consul,  or  con- 
sular agent  of  the  United  States  in  such  country,  or  to  any  per- 
son agreed  on  by  the  parties. 

The  commission  shall  authorize  the  commissioner  to  adminis- 
ter an  oath  to  witness,  and  to  take  his  deposition  in  answer  to 
the  interroffatories;  or  when  the  examination  is  to  be  made  with- 
out inten'ogatories,  in  respect  to  the  matter  in  dispute;  and  to 


208 


IDAHO. 


[Part  6. 


certify  the  deposition  to  the  Court,  in  a  sealed  envelope,  directed 
to  the  clerk  or  other  person  designated  or  agreed  upon,  and  for- 
ward to  him  by  mail  or  other  usual  channel  of  conveyance. 


CHAPTER  XV. 


JUDICIAL  RECORDS. 

A  judicial  record  of  this  Territory  or  of  the  United  States 
may  be  proved  by  the  production  of  the  origini*!  or  copy 
thereof,  certified  by  the  clerk,  or  other  person  having  the  legal 
custody  thereof,  under  the  seal  of  the  Court,  to  be  a  true  copy 
of  such  record. 

The  records  or  judicial  proceedings  of  the  Courts  of  any 
State  of  the  United  States  may  be  proved  or  admitted  in  the 
Courts  of  this  Tei-ritory,  by  the  attestation  of  the  clerk  and  the  seal 
of  the  Court  annexed,  (if  there  be  a  seal)  together  with  the 
certificate  of  the  judge,  chief  justice  or  presiding  magistrate,  as 
the  case  may  be,  that  the  attestation  is  in  due  form. 

A  seal  of  a  Court  or  public  officer,  when  required  may  be  im- 
pressed with  wax,  wafer  or  any  other  substance,  and  then 
attached  to  the  instrument  or  document;  or  it  may  be  impressed 
on  the  paper  alone. 


CHAPTER  XVI. 


ACKNOWLEDGMENTS. 


Acknowledgments  are  required  in  all  conveyances  affecting 
real  estate.     The  same  certificate  required  as  in  California. 
May  be  taken  by: 


Chap.  16.] 


IDAHO. 


209 


1.  If  acknowledged  or  proved  within  this  Territory,  by  some 
judge  or  clerk  of  a  Court  having  a  seal,  or  some  notary  public, 
recorder  or  justice  of  the  peace  of  the  proper  county. 

2.  If  acknowledged  or  proved  without  this  Territory,  and 
within  the  United  States,  by  some  judge  or  clerk  of  any  Court 
of  the  United  States,  or  of  any  State  or  Territory  having  a  seal, 
or  by  any  commissioner  appointed  by  the  Governor  of  this 
Territory. 

3.  If  acknowledged  or  proved  without  the  United  States,  by 
some  judge  or  clerk  of  any  Court,  (having  a  seal)  of  any  State, 
Kingdom  or  Empire,  or  by  a  notary  public  therein,  or  by  any 
minister,  commissioner,  or  consul  of  the  United  States  ap- 
pointed to  reside  therein. 

The  act  concerning  conveyances  of  real  estate,  or  any  interest 
therein,  and  mortgages,  is  the  same  as  in  California. 


CHAPTER  XVII. 


LIMITED  PARTNEKSHIPS. 


Limited  partnerships  for  |the  transaction  of  mercantile,  me- 
chanical, mining  or  manufacturing  business  may  be  formed,  but 
not  for  the  purpose  of  banking  or  insurance. 

No  such  parnership  shall  be  deemed  to  have  been  formed 
until  a  certificate  which  shall  contain  the  name  or  firm  under 
which  said  partnership  is  to  be  conducted,  the  jiames  and  respec- 
tive places  of  residence  of  all  the  general  and  special  partners, 
distinguishing  who  are  general,  and  who  are  special  partners, 
the  amount  of  capital  which  each  special  partner  has  contributed 
to  the  capital  stock,  the  general  nature  of  the  business  to  be 
transacted,  the  time  when  the  partnership  is  to  commence  and 
terminate,  shall  be  made  and  severally  signed  and  acknowledged 
by  all  the  partners,  before  an  oflBcer  authorized  to  take  acknowl- 
ment  of  deeds,  and  recorded  in  the  ofl&ce  of  the  recorder  of  the 
county  in  which  the  principal  place  of  business  of  the  partner- 
ship is  located.     If  there  shall  be  a  place  of  business  in  diflferent 


j210 


IDAHO. 


Part  6.] 


counties,  said  certificate  shall  be  recorded  in  each  of  such  coun- 
ties; a  copy  of  such  certificate  shall  be  published  three  suc- 
cessive weeks  in  the  county  where  the  principal  place  of  busi- 
ness is  located. 

Any  false  statement  in  the  certificate  makes  all  the  partners 
liable  as  general  partners. 

The  special  partners  shall  not  be  personally  liable  for  any 
debts  of  the  partnership,  except  their  names  be  used  in  said 
firm  with  their  consent  or  privity,  or  shall  personally  make  any 
contract  respecting  the  concerns  of  the  partnership  with  any 
person  except  the  general  partner. 


CHAPTER  XVIII. 
MARRIED  WOMEN. 


All  property,  both  real  and  personal,  of  the  wife  before  mar- 
riage, and  that  acquired  afterwards,  by  gift,  bequest,  devise  or 
descent,  is  her  separate  property,  and  all  the  husband's  is  his 
separate  property.  All  other  property  acquired  after  marriage 
is  common  property. 

The  wife  is  required  to  make,  sign,  acknowledge,  and  have  re- 
corded a  complete  inventory  of  her  separate  property,  in  the 
ofl&ce  of  the  recorder  of  the  county  where  the  property  is  situated. 
The  husband  has  the  management  and  control  of  the  wife's  sepa- 
rate property  during  marriage,  out  cannot  alienate  or  create  a 
lien  or  incumbrance  on  the  same,  except  by  instrument  signed 
and  acknowledged  by  both  husband  and  wife. 

The  District  Court  may,  on  application  of  the  wife,  appoint  a 
trustee  to  take  charge  of  and  manage  her  separate  property,  if 
the  husband  mismanages  it  or  commits  waste. 

The  husband  has  entire  control  of  common  property  and  his 
own  separate  property,  and  the  rents  and  profits  of  all  the  sepa- 
rate property  of  both  husband  and  wife  are  deemed  common 
property,  unless  expressly  provided  in  the  instrument  or  devise 


Chap.  18.] 


IDAHO. 


211 


to  the  contrary.  Upon  dissolution  of  the  community  by  death, 
half  of  the  common  property  goes  to  the  survivor  and  half  to 
the  descendants,  if  there  are  any;  if  not,  all  to  the  survivor. 
Upon  dissolution  by  decree  of  Court,  the  common  property 
must  be  equally  divided,  unless  the  decree  is  granted  on  the 
ground  of  adultery  or  extreme  cruelty,  when  the  division  of  the 
same  is  left  to  the  discretion  of  the  Court  granting  the  decree. 
The  separate  property  of  the  husband  is  not  liable  for  the 
debts  of  the  wife  contracted  before  marriage,  but  the  separate 
property  of  the  wife  is  liable  for  all  such  debts. 


CHAPTER  XIX. 


CORPORATIONS. 


U 

a 

if 

is 
1- 
n 

te 


There  is  a  general  law  for  the  formation  of  corporations,  by 
which  three  or  more  persons  may  form  a  coi'poration  by  filing  a 
certificate  in  writing  with  the  clerk  of  the  District  Court  of  the 
district  in  which  the  principal  place  of  business  of  the  corpo- 
ration is  intended  to  be  located,  and  a  certified  copy  of  the 
same,  under  the  hand  of  the  clerk  and  the  seal  of  the  Court,  in 
the  office  of  the  Secretary  of  the  Territory.  Said  certificate 
must  state  the  corporate  name  of  the  company,  the  object  for 
which  it  is  formed,  amount  of  capital  stock,  term  of  existence, 
(not  to  exceed  fifty  years)  number  of  shares,  number  of  trustees 
and  their  names  who  shall  manage  the  concerns  of  the  corpora- 
tion for  the  first  three  months,  and  principal  place  of  business. 

The  total  amount  of  the  debts  of  the  corporation  shall  not,  at 
any  time,  exceed  the  amount  of  tlie  capital  stock  actually  paid 
in;  and  in  case  of  any  excess,  the  trustees  under  whose  admin- 
istration the  same  may  have  happened,  except  those  who  have 
caused  their  dissent  therefrom  to  be  entered  at  large  on  the 
minutes  of  the  board  of  trustees  at  the  time,  and  except  those 
not  present  at  the  time  when  the  same  did  happen,  shall,  in 
their  individual   and  private   capacities,  be  liable  jointly  and 


212 


IDAHO. 


Parte. 


severally  to  the  said  corporation,  aiad  in  the  event  of  its  jdisso- 
lution,  to  any  of  the  creditors  thereof,  for  the  full  amount  of 
such  excess. 

Each  stockholder  shall  be  individually  and  personally  liable 
for  his  proportion  of  all  the  debts  and  liabilities  of  the  corpo- 
ration, contracted  or  incurred  during  the  time  that  he  was  a 
stockholder,  for  the  recovery  of  which  joint  or  several  actions 
may  be  instituted;  and  when  a  judgment  in  such  action  shall  be 
recovered  against  joint  stockholders,  the  Court  on  the  trial 
thereof  shall  apportion  the  amount  of  the  liability  of  each,  and 
in  the  execution  thereof  no  stockholder  shall  be  liable  beyond 
hit^^  proportion  so  ascertained. 


CHAPTER  XX. 


CHATTEL  MORTGAGES 


May  be  given  upon  all  kinds  of  personal  property.  To  be  valid 
against  subsequent  incumbrancers,  or  purchasers  in  good  faith, 
for  a  valuable  consideration,  the  moi'tgage  must  show  the  resi- 
dence, and  the  profession,  trade  or  occupation  of  both  the 
mortgagor  and  mortgagee,  and  each  of  the  parties  must  make 
affidavit  thereto,  that  the  mortgage  is  made  in  good  faith,  and 
without  any  design  to  hinder,  delay  or  defraud  creditors.  When 
so  made  and  recorded  in  the  office  of  the  recorder  of  deeds, 
such  mortgage  is  good  against  all  persons. 


Chap.  21.] 


IDAHO. 


218 


\ 


CHAPTER  XXI. 

INTEREST  AND  USURY. 

Ten  per  cent,  per  annum  is  the  legal  rate  of  interest.  Parties 
may  agree  in  writing  for  any  rate  of  interest  not  exceeding  two 
per  cent,  per  month,  but  any  judgment  rendered  upon  such  con- 
tract bears  only  ten  per  cent,  per  annum.  The  penalty  for  a 
greater  rate  than  above  specified  is  three  times  the  amount  so 
paid,  and  the  person  receiving  a  greater  rate  than  two  per  cent, 
per  month  is  liable  to  a  fine  of  three  hundred  dollars,  or  six 
months'  imprisonment,  or  both.  Interest  does  not  commence  to 
run  on  open  accounts  until  a  balance  is  struck  and  agreed  to, 
or  a  settlement  is  had. 


CHAPTER  XXH. 


AFFIDAVITS. 


An  affidavit  to  be  used  before  any  Court,  judge  or  officer  of 
this  Territor}'  may  be  token  before  any  judge  or  clerk  of  any 
Court,  or  any  justice  of  the  peace  or  notary  public  in  this  Ter- 
ritory. 

An  affidavit  taken  in  another  State  or  Territory  of  the  United 
States,  to  be  used  in  this  Territory,  shall  be  taken  before  a  com- 
missioner appointed  by  the  Governor  of  this  Territory  to  take 
affidavits  and  depositions  in  such  other  State  or  Territory,  or  be- 
fore the  judge  of  a  Court  of  record  having  a  seal.  An  affidavit 
taken  in  a  foreign  country,  to  be  used  in  this  Tei'ritory,  shall  be 
taken  before  an  ambassador,  minister,  or  consul  of  the  United 
States,  or  before  any  judge  of  a  Court  of  record  having  a  seal 
in  such  foreign  country,  or  before  a  commissioner  of  deeds  ap- 
pointed by  the  governor. 


:       t 


214 


IDAHO. 


[Part  6. 


When  an  affidavit  is  taken  befoi'e  a  judge  of  a  Court  in  an- 
other State  or  Territory,  or  a  foreign  country,  the  genuineness 
of  the  signature  of  the  judge,  the  existence  of  the  Court,  and 
the  fact  that  such  judge  is  a  member  thereof,  shall  be  certified 
by  the  clerk  of  the  Court  under  the  seal  thereof. 


CHAPTER  XXIII. 


SOLE  TRADERS. 


i 


A  married  woman  may  become  a  sole  trader  by  the  judgment 
of  the  Probate  Court  of  the  county  in  which  she  has  resided  for 
six  mouths  next  preceding  the  application. 

A  person  intending  to  make  application  to  beo  me  a  sole  trader 
must  publish  notice  of  such  intention  in  a  newspaper  published 
in  the  county,  or  if  there  be  none,  then  in  a  newspaper  published 
in  an  adjoining  county,  for  four  successive  weeks. 

The  notice  must  specify  the  term  and  the  day  upon  which 
application  will  be  made,  the  nature  and  place  of  the  business 
proposed  to  be  conducted  by  her,  and  the  name  of  her  husband. 

Ten  days  prior  to  the  day  named  in  the  notice,  the  applicant 
must  file  a  verified  petition,  setting  foiih  : 

1.  That  the  application  is  made  in  good  faith,  to  enable  the 
applicant  to  support  herself,  and  others  dependent  upon  her, 
giving  their  names  and  relation. 

2.  The  fact  of  insufficient  support  from  her  husband,  and  the 
jauses  thereof,  if  known. 

3.  Any  other  grounds  for  application,  which  are  good  causes 
for  a  divorce,  with  the  reason  why  a  divorce  is  not  sought;  and, 

4.  The  nature  of  the  business  proposed  to  be  conducted,  and 
the  capital  to  be  invested  therein,  if  any,  and  the  sources  from 
which  it  is  derived.  ♦ 

The  applicant  may  invest  in  the  business  proposed  to  be  con- 
ducted a  sum  derived  from  the  community  property  or  of  the 
separate  pi'oi)erty  of  the  husband,  not  exceeding  five  hundred 
dollars. 


Chap.  23. J 


IDAHO. 


215 


Any  creditor  of  the  husband  may  oppose  the  application  by 
filing  in  the  Court  (prior  to  the  day  named  in  the  notice)  a  written 
opposition,  verified,  containing  either  : 

1.  A  specific  denial  of  the  truth  of  any  material  allegation  of 
the  petition,  or  setting  forth — 

2.  That  the  application  is  made  for  the  purpose  of  defrauding 
the  opponent ;  or, 

3.  That  the  application  is  made  to  prevent,  or  will  prevent 
him  from  collecting  his  debt. 

Issues  of  fact  may  be  tried  as  in  other  cases.  If  the  facts 
found  sustain  the  petition,  the  Coui't  must  render  judgment, 
authorizing  the  applicant  to  carry  on  in  her  own  name  and  on 
her  own  account,  the  business  specified  in  the  notice  and  petition. 

The  sole  trader  must  make  and  file  with  the  clevk  of  the  Court 
an  affidavit,  in  the  following  form  : 

"  I,  A  B,  do,  in  presence  of  Almighty  God,  solemnly  swear 
that  this  application  was  made  in  good  faith,  for  the  purpose  of 
enabling  me  to  support  myself,  (and  any  dependent,  such  as 
husband,  parent,  sister,  child,  or  the  like,  naming  them,  if  any) 
and  not  with  any  view  to  defraud,  delay  or  hinder  any  creditor 
or  creditors  of  my  husband;  and  t;hat,  of  the  moneys  so  to  be 
used  by  me  in  business,  not  over  five  hundred  dollars  have 
come,  either  directly  or  indirectly  from  my  husband;  so  help 
me  God." 

A  certified  copy  of  the  decr'ie,  with  this  oath  endorsed  there- 
on, must  be  recorded  iu  the  office  of  the  recorder  of  the  county 
where  the  business  is  to  be  carried  on. 

A  married  woman  who  ik  adi  udged  a  sole  trader  is  responsible 
and  liable  for  the  maintenance  of  her  minor  children. 

The  liusband  of  a  sole  trader  is  not  liable  for  any  debt  con- 
tracted by  her  iu  the  course  of  her  sole  trader's  business,  un- 
less contracted  upon  his  written  consent. 


216 


IDAHO. 


[Part  6. 


CHAPTER  XXIV. 


INSOLVENT  DEBTOES. 


Every  insolvent  debtor  may  be  discharged  from  his  debts, 
upon  executing  an  assignment  of  all  his  property,  real,  personal 
or  mixed,  for  the  benefit  of  all  his  creditors;  provided,  said  as- 
signment shall  be  made  bona  fide  and  without  fraud. 

The  District  Court  only  has  jurisdiction  in  insolvent  cases. 
The  debtor  must  petition  the  judge  having  jurisdiction  within 
the  place  of  his  residence;  to  his  petition  mast  be  annexed  his 
schedule,  signed  by  himself,  and  by  him  sworn  to  before  the  said 
judge  in  the  following  words,  to  wit: 

"  I,  A  B,  do,  in  the  presence  of  Almighty  God,  truly  and  sol- 
emnly swear,  that  the  schedule  now  delivered  by  me  doth  con- 
tain a  full,  perfect  and  true  discovery  of  all  the  estate,  real  and 
personal  and  mixed,  goods  and  eft'ects  to  me  in  any  way  belong- 
ing, all  such  debts  as  are  to  me  owing,  or  to  any  person  or  per- 
sons in  trust  for  me,  and  all  securities  and  contracts,  whereby 
any  money  may  hereafter  become  payable,  or  any  benefit  or  ad- 
vantage accrue  to  me,  or  to  my  use,  or  to  any  person  or  persons 
in  trust  for  me;  that  I  have  no  lands,  money,  stock  or  estate,  re- 
version or  expectancy,  besides  that  set  forth  in  my  schedule; 
that  I  have,  in  no  instance,  created  or  acknowledged  a  debt  for 
a  greater  sura  than  I  honestly  and  truly  owed;  that  I  have  not, 
directly  nor  indirectly,  sold  or  otherwise  disposed  of  in  trust  or 
concealed  any  part  of  my  property,  effects,  or  contracts;  that  I 
have  not,  in  any  way,  compounded  with  my  creditors,  whereby 
to  secure  the  same,  or  to  receive  or  to  expect  any  profit  or  ad- 
vantage therefrom,  or  to  defraud  or  deceive  any  creditor  to 
whom  I  am  indebted  in  any  maimer  whatsoever,  so  help  me 
God." 

The  judge  will  set  apart  all  real  and  personal  property  exempt 
from  exection  to  the  use  of  the  insolvent  debtor  and  his  family. 

The  judge  receiving  said  petition,  schedule  and  affidavit,  shall 
make   an   order  requiring   all   creditors   of    such  insolvent  to 


Chap.  .24.1 


IDAHO. 


217 


show  cause,  if  any  they  have,  why  an  assignment  of  the  insol- 
vent's estate  should  not  be  made  and  he  be  discharged  from  his 
debts;  and  shall  direct  the  cleik  to  issue  a  notice  calling  the 
creditors  nf  insolvent  to  be  and  appear  upon  a  specified  day, 
not  less  than  thirty,  nor  more  than  forty  days  from  first  publica- 
tion, before  said  judge,  either  at  Chambers  or  in  open  Court,  as 
such  judge  shall  order,  to  show  cause  why  the  prayer  of  the 
insolvent  should  not  be  granted.  Said  notice  must  be  published 
in  the  county  newspaper,  not  less  than  thirty  days;  if  no  county 
paper,  then  in  adjoining  county. 

When  issuing  order  for  meeting  of  creditors,  the  judge  shall 
order  all  proceedings  against  the  debtor  stayed,  except  proceed- 
ings for  foreclosure  of  mortgage  or  other  liens,  or  of  attaching 
creditors. 

At  the  meeting  of  cred'tors,  one  or  more  assignees,  not  ex- 
ceeding three,  may  be  aj  pointed  by  a  majority,  in  sums  or  in 
claims,  of  the  creditors,  who  have  certified  on  oath  that  their 
claims  are  legitimate  and  true. 

If  the  creditors  fail  to  meet,  or  having  met,  fail  to  appoint  an 
assignee,  the  judge  shall  authorize  the  sheriff  of  the  county  to 
perform  the  functions  of  assignee,  unless  one  of  the  creditors 
shall  agree  to  act  as  assignee;  in  that  case  the  judge  shall  ap- 
point such  creditor. 

All  sales  of  property  of  an  insolvent  debtor  by  the  assignee, 
shall  be  at  public  auction  to  the  highest  and  best  bidder  for 
cash,  after  three  weeks'  notice  in  newspaper;  provided,  if  prop- 
erty is  perishable,  it  may  be  sold  on  seven  days'  notice  after  the 
appointment  of  assignees ;  any  one  of  the  creditors  may  oppose 
it,  on  the  ground  of  fraud  of  the  insolvent  debtor ;  or,  that 
assignees  were  not  legally  appointed.  His  written  opposition 
must  be  filed  with  the  Court  within  ten  days  after  such  appoint- 
ment ;  the  facts  shall  be  tried  by  a  jury  of  not  less  than  six 
men.  If  the  jury  find  the  insolvent  debtor  guilty  of  fraud,  he 
shall  forever  be  deprived  of  the  benefits  of  the  laws  passed  for 
the  relief  of  insolvent  debtors  in  this  Territory ;  shall  forever  be 
deemed  incapable  of  holding  any  office  of  tmst  or  profit  under 
the  government  of  this  Territory' ;  shall  morover  be  liable  to  be 
prosecuted  and  punished  as  a  perjurer,  if  he  should  be  convicted 


218 


IDAHO. 


[Part  6. 


h 


of  having  foresworn  himself  in  any  of  the  declarations  he  may 
have  made,  agreeable  to  the  provisions  of  this  act ;  and  if  con- 
victed of  fraud,  he  shall  be  sentenced  by  the  Court  to  suffer 
imprisonment,  at  hard  labor,  in  the  Territorial  prison,  for  t,  term 
not  less  than  six  months  nor  more  than  two  years. 

Fraudulent  Bankrupts  Are 

All  persons  who  shall  be  convicted  of  having  concealed  their 
property,  with  the  intention  to  keep  it  from  their  creditors  ;  all 
who  shall  be  convicted  of  having  concealed  or  altered  their 
books  or  papers,  with  the  same  intention ;  all  who  shall  be  con- 
victed of  having  passed  sham  deeds  for  the  purpose  of  convey- 
ing the  whole  or  any  part  of  his  property  and  depriving  his 
creditors  thereof;  or  of  having  knowingly  omitted  to  declare 
any  of  his  property  rights  or  claims  in  his  schedule ;  or  of  hav- 
ing purloined  his  books  or  any  of  them  ;  or  of  having  altered, 
changed  or  made  them  anew  to  an  intent  to  defraud  his  credi- 
tors ;  or  of  having  alienated,  mortgaged  or  pledged  any  of  his 
property ;  or  of  having  committed  any  other  kind  of  fraud  to 
the  prejudice  of  his  creditors,  shall  be  considered  a  fraudulent 
bankrupt. 

Who  Debarred  the  Benefits  of  this  Act. 

Any  debtor  who  shall  be  convicted  of  having  at  any  time 
within  three  months  next  preceding  his  failure,  sold,  engaged 
or  mortgaged  any  of  his  goods  and  effects,  or  of  having  other- 
wise assigned,  transferred  or  disposed  of  the  same  or  any  part 
thereof,  or  confessed  judgment  in  order  to  give  a  preference  to 
one  or  more  of  his  creditors  over  the  others,  whereby  to  receive 
any  advantage  in  anticipation  of  his  failure,  to  the  prejudice  of 
his  creditors. 

All  debtors  owing  or  accountable  in  any  manner  for  public 
funds  or  property  of  whatever  nature  or  kind;  all  unfaithful 
depositories;  all  such  as  refuse  or  neglect  to  pay  up  all  funds 
received  by  them  as  bankers,  brokers,  commission  merchants, 
or  for  money,  goods  or  effects  received  by  them  in  a  fiduciary 
capacity,  shall  be  denied  the  benefits  of  this  act. 

If  after  the  presentation  of  his  petition  the  insolvent  shall 
sell,  or  in  any  manner  transfer  or  assign  any  of  his  property,  or 


Chap.  24]. 


IDAHO. 


219 


collect  any  debts  due  him,  and  shall  not  give  a  just  and  correct 
account  of  the  property  so  sold  or  transferred,  and  the  moneys 
so  collected,  and  pay  the  same  over  to  the  assignees  within  ten 
days  of  their  appointment,  said  debtor  shall  not  receive  the 
benefit  of  the  act. 

Whenever  any  insolvent  debtor  Las  had  the  benefit  of  this 
act,  if  thereafter,  at  any  time,  it  is  made  to  appear  that 
he  has  concealed  any  part  of  his  property  or  estate,  or  given  a 
false  schedule,  or  committed  any  fraud  under  the  provisions  of 
this  act,  it  is  hereby  declared  that  he  has  forfeited  all  benefit 
and  advtintage  which  he  would  otherwise  have  had  by  virtue  of 
this  act;  and  he  cannot  avail  himself  of  any  of  its  provisions  in 
bar  to  any  claim  that  may  be  instituted  against  him. 

No  person  can  apply  for  or  receive  the  benefit  of  this  act 
through  an  agent  or  attorney  in  fact. 

An  insolvent  debtor  can  only  be  released  and  discharged  from 
such  debts  and  liabilities  as  he  shall  have  set  forth  and  named 
in  his  schedule. 

From  and  after  the  surrender  of  the  property  of  the  in- 
solvent debtor,  all  property  of  such  insolvent  debtor  shall  be 
fully  vested  in  his  assignee  or  assignees  for  the  benefit  of  his 
creditors,  and  shall  not  be  liable  to  be  seized,  attached,  taken  or 
levied  upon  by  virtue  of  any  execution  issued  against  the  prop- 
erty of  said  insolvent,  and  the  assignees  who  may  be  appointed 
shall  take  possession  of,  and  be  entitled  to  claim  and  recover  all 
the  said  property;  and  to  administer  and  sell  the  same  as  herein 
provided;  subject,  however,  to  the  rights  of  mortgagees,  lien 
holders  and  prior  attaching  creditors,  whose  prior  rights  shall 
in  no  wise,  be  affected  by  the  provisions  of  this  act. 

Two  or  more  creditors  may,  at  any  time,  make  a  motion  to 
know  if  the  assignees  have  funds  in  their  hands,  and  the 
said  assignees  shall  be  required  to  present  their  accounts,  and  if 
they  have  funds  they  shall  distribute  them  without  delay. 

If  any  creditors  reside  without  the  limits  of  the  Territory  the 
judge  shall  appoint  an  attorney  to  represent  them;  the  fees  of 
said  attorney  shall  be  paid  from  the  money  recovered  for  such 
non-residents  at  the  rate  of  ten  per  cent. ;  provided,  in  no  case 
shall  the  fees  exceed  three  hundred  and  fifty  dollars. 


PART  VII 


WYOMING  TERRITORY. 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  E.  P.  JOHNSON, 

CHEYENNE. 


CHAPTER  I. 


COUETS  AND  THEIE  JURISDICTION. 

The  Courts  provided  for  this  Territory  are  a  Supreme  Court, 
District  Courts,  Probate  Courts,  and  Justices  of  the  Peace. 

The  Supreme  Courts  has  no  original  jurisdiction,  except  in 
habeas  corpus  cases.  It  exercises  an  appellate  jurisdiction, 
principally  in  cases  coming  up  from  the  District  Courts. 

The  District  Courts  have  chancery  and  common  law  jurisdic- 
tion, and  jurisdiction  in  appeals  from  the  Justice  and  Probate 
Courts. 

The  Probate  Court  has  no  jurisdiction  except  over  probate 
business  proper. 

The  Justices  of  the  Peace  have  no  jurisdiction  of  any  matter  in 
controvery  where  the  title  or  boundaries  of  land  may  be  in  dis- 
pute, or  where  the  debt  or  sum  claimed  shall  exceed  one  hun- 
dred dollars. 


222 


WYOMINQ. 


[Part  7. 


CHAPTER   II. 
TERMS  OF  COURTS,  WHEN  AND  WHERE  HELD. 

The  ?Jeri"itory  is  divided  into  three  judicial  districts:  Laramie 
county  con; poses  the  first;  Albany  and  Carbon  the  second; 
Sweetwator  and  Uinta  the  third.  Terms  of  Coi'vt  are  held  in 
each,  as  follows: 

At  Cheyenne,  commencing  on  the  fourth  Monday  of  May  and 
first  Monday  of  November  of  each  year. 

At  Laramie,  commencing  on  the  first  Monday  of  February  and 
August  of  each  year. 

At  Rawlins,  commencing  on  the  first  Monday  of  April  and 
second  Monday  of  September  of  each  year. 

At  Areen  River,  on  the  first  Monday  of  May  and  October  of 
each  year. 

At  Evanston,  commencing  on  the  first  Monday  of  January  and 
July  of  each  year. 


CHAPTER   HI. 

COMMENCEMENT    OF    ACTIONS,   TIME    TO    ANSWER, 

PLACE  OF  TRIAL. 


Actions  are  commenced  by  filing  in  the  office  of  the  clerk  of 
the  proper  Court  a  petition,  and  causing  a  summons  thereon  to 
be  issued.  The  summons  is  returnable  on  the  second  Monday 
after  the  day  of  its  date,  and  the  answer  or  demurrer  of  the  de- 
fendant shall  be  filed  on  or  before  the  third  Saturday  after  the 
return  day  of  the  summons. 

Civil  actions  must  be  tried  in  the  county  in  which  they  are 
commenced,  unless  upon  application  for  a  change  of    venue 


Ohap.  3.] 


WVOMIKO. 


223 


based  upon  sufficient  reasons  the  Court  orders  the  place  of  trial 
to  be  changed;  and  in  such  case,  the  Court  must  send  the  cause 
to  the  most  convenient  county. 


CHAPTER   IV. 


LIMITATION  OF  ACTIONS. 


Actions  for  the  recovery  of  real  property  can  only  be  brought 
within  twenty-one  years  af^er  the  cause  of  action  shall  have  ac« 
crued,  except  actions  of  forcible  entry  and  detainer,  or  forcible 
and  unlawful  detention,  only  of  real  property,  which  must  be 
commenced  within  two  years  after  the  cause  of  action  shall 
have  accrued. 

An  action  upon  a  specialty,  or  any  agreement,  contract  or 
promise  in  writing,  or  on  a  foreign  judgment,  must  be  brought 
within  fifteen  years.  And  actions  upon  contract  not  in  writing, 
express  or  implied,  or  upon  a  liability  created  by  statute,  must 
be  brought  within  six  years  after  the  cause  of  action  shall  have 
accrued. 

Causes  of  action  arising  out  of  the  Territory  against  a  non- 
resident are  barred  one  year  after  the  debtor  becomes  a  resi- 
dent. 


! 


CHAPTER  V. 


ATTACHMENTS. 

The  creditor  in  a  civil  action  for  the  recovery  of  money,  may, 
ot  or  after  the  commencement  thereof,  by  filing  the  necessary 
affidavit,  have  an  attachment  against  the  property  of  the  debtor, 
and  upon  the  grounds  herein  stated  : 


224 


WYOMING. 


[Part  7. 


1.  When  the  debtor,  or  one  of  several  debtors,  is  a  foreign 
corporation,  or  a  non-resident  of  this  Territory. 

2.  Has  absconded  with  the  intent  to  defraud  his  creditors. 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of 
a  summons. 

4.  So  conceals  himself  that  a  s\immons  cannot  be  served  upon 
him. 

5.  Is  about  to  remove  his  i)roperty,  or  a  part  thereof,  out  of 
the  jui'isdiction  of  the  Court,  with  the  intent  to  defraud  his 
creditors. 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into 
money,  for  the  purpose  of  placing  it  beyond  the  reach  of  his 
creditors. 

7.  Has  property  or  rights  in  action'which  he  conceals. 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dis- 
pose of  his  property,  or  a  part  thereof,  with  the  intent  to  defraud 
his  creditors. 

9.  Fraudulently  contracted  the  debt  or  incurred  the  obliga- 
tion for  which  suit  is  about  to  be  or  has  been  brought. 

But  an  attachment  shall  not  be  granted  on  the  ground  that 
the  debtor  is  a  foreign  corporation,  or  a  non-resident  of  this 
Territory,  for  any  other  claim  than  a  debt  or  demand  arising 
upon  contract,  judgment,  or  decree. 

When  a  foreign  corporation  or  non-i-eBi  "lent  is  defendant,  the 
writ  may  issue  without  an  undertaking;.  In  all  other  cases  the 
writ  will  not  be  issued  by  the  clerk  oi'  ^.he  Court  until  there  has 
been  executed  and  filed  in  his  office  an  undertaking  with 
sureties  approved  by  him,  in  double  the  amount  of  plain- 
tiff's claim,  to  the  effect  that  plaintiff  shall  pay  all  damages 
which  defendant  may  sustain  by  reason  of  the  attachment,  if  the 
writ  be  wrongfully  obtained. 


id! 


Chap.  5.] 


WYOMING. 


-if 


CHAPTER  VI. 


'ip 


226 


(f 


AKREST  IN  CIVIL  ACTIONS. 


No  person  can  be  imprisoned  for  debt  in  any  civil  action  on 
mesne  or  final  process,  unless  in  case  of  fraud.  An  order  for 
the  arrest  of  the  debtor  shall  be  made  by  the  clerk  of  the  Court 
in  which  the  action  is  brought,  when  there  is  filed  in  his  office 
an  affidavit  of  the  creditor,  or  his  authorized  agent  or  attorney, 
made  before  any  judge  of  any  Court  of  the  Temtory,  or  clerk 
thereof,  or  justice  of  the  peace,  stating  the  nature  of  the  credit- 
or's claim,  that  it  is  just,  and  the  amount  thereof  an  nearly  as 
may  be,  and  establishing  one  or  more  of  the  following  particu- 
lars: 

1.  That  the  debtor  has  removed,  or  begun  to  remove,  any  of 
his  property  out  of  the  jurisdiction  of  the  Court,  with  intent  to 
defraud  his  creditors. 

2.  That  he  has  begun  to  convert  his  property,  or  a  part 
thereof,  into  money,  for  the  purpose  of  placing  it  beyond  the 
reach  of  his  creditors. 

3.  That  he  has  property  or  rights  of  action  which  he  fraudu- 
lently conceals. 

4.  That  he  has  assigned,  removed,  or  disposed  of,  or  has  begun 
to  dispose  of  his  property,  or  a  part  thereof,  with  intent  to  de- 
fraud his  creditors. 

5.  That  he  fraulently  contracted  the  debt  or  incurred  the  ob- 
ligation for  which  suit  is  about  to  be  or  has  been  brought. 

The  affidavit  must  also  contain  a  statement  of  the  facts  claimed 
to  justify  the  belief  in  the  existence  of  one  or  more  of  the  above 
particulars.  The  creditor,  before  the  issuing  of  the  order  of 
arrest,  must  give  bond  in  double  the  amount  of  the  claim  stated 
in  the  affidavit.  The  death  of  a  person  under  arrest  does  not 
satisfy  the  judgment. 


226 


WYOMING. 


[Part  7. 


CHAPTER  Vn. 


i 


N 


JUDGMENT  LIENS. 

A  judgment  is  a  lien  on  the  lands  and  tenements  of  a  judg- 
ment debtor  from  the  first  day  of  the  term  at  which  it  is  ren- 
dered; but  judgments  by  confession  and  judgments  rendered  at 
the  same  term  at  which  the  action  is  commenced  bind  such 
lands  only  from  the  date  of  their  rendition . 

If  execution  is  not  sued  out  within  five  yeai's  from  the  date  of 
th  3  rendition  of  judgment,  such  judgment  becomes  dormant, 
and  ceases  to  operate  as  a  lien.  The  judgment  may  subse- 
quently be  revived,  but  the  lien  is  not  restored,  except  from  the 
date  of  revivor. 


CHAPTER  Vni. 


EXECUTIONS,  SALE,    REDEMPTION,  AND    EXEMP- 
TIONS. 


IS 


II 


Executions  are  of  three  kinds: 

1.  Against  the  property  of  the  judgment  debtor. 

2.  Against  his  person. 

3.  For  the  delivery  of  the  possession  of  real  property,  with 
damages  for  withholding  the  same  and  costs. 

The  ofiicer  having  the  writ  must  levy  first  on  the  goods  and 
chattels  of  the  debtor,  but  if  no  goods  be  I'ound,  he  shall  en- 
dorse on  the  writ  "  no  goods,"  and  forbhwitli  levy  the  writ  of 
execution  upon  the  lands  and  tenements  of  the  debtor  liable  to 
satisfy'  the  judgment. 

The  officer  may  sell  goods  and  chattels  seined,  by  first  pub- 
lishing notice  of  the  time  and  place  of  sale,  I'or  a  period  of  ten 
days.  Notice  of  the  sale  of  lands  and  tenements  must  be  pub- 
lished thirty  days  prior  to  the  sale. 


Chap.  8.] 


WYOMINd. 


227 


There  is  now  in  this  Territory  no  statute  providing  for  the 
redemption  of  property,  either  real  or  personal,  sold  on  execu- 
tion. 

The  exemptions  from  levy,  or  seizure,  are  a  homestead  not 
exceeding  in  value  $1,500,  so  long  as  it  is  actually  occupied  as 
such  by  the  debtor  and  his  family,  the  value  to  be  ascertained  by 
appraisers. 

So,  too,  the  following  personal  property,  when  owned  by  the 
head  of  a  family  who  is  residing  with  the  same  :  Furniture,  bed- 
ding, and  provisions,  and  such  other  other  articles  as  the  debtor 
may  select,  not  exceeding  in  value  $500. 

Tliere  is  also  exempt  the  necessary  wearing  apparel  of  every 
p  Jrson,  not  exceeding  in  value  $50. 

The  tools,  team  and  implements,  or  stock  in  trade  of  any 
mechanic,  miner,  or  othei'  person,  used  and  kept  for  the  purpose 
of  carrying  on  his  trade  or  business,  not  exceeding  in  value 
$300.  Also  the  library,  instruments  and  implements  of  any 
professional  man,  not  exceeding  in  value  $300. 

There  is  no  exemjjtion  in  favor  of  a  person  not  an  actual  resi- 
dent of  the  Territory,  nor  one  about  to  remove  or  abscond  there- 
from. And  no  article  of  jiroperty  is  exempt  from  attachment  or 
sale,  upon  execution  for  the  purchase  money  of  said  article  of 
property. 


CHAPTER  TX. 


PROCEEDINGS  IN  AID  OF  EXECUTIONS. 


Proceedings  in  aid  of  executions  may  be  had,  in  which  the 
debtor  may  be  examined  and  compelled  to  disclose  and  appro- 
priate to  the  payment  of  the  judgment  any  property  which  he 
may  have  unjustly  refused  to  apply  to  that  purpose. 

A  receiver  may  be  appointed  to  take  and  dispose  of  such  prop- 
erty of  the  judgment  debtor  that  may  be  unearthed  on  examina- 
tion, either  legal  or  equitable,  and  rppropriate  the  proceeds  to 
the  payment  of  the  judgment. 


228 


WYOMING. 


[Part  7 


CHAPTER  X. 


SECURITY  FOE  COSTS. 


In  all  cases  in  which  the  plaintiff  is  a  resident  of  the  county 
in  which  the  action  is  brought,  he  must  furnish  security  for 
costs  before  commencing  such  action.  Security  need  not  be  fur- 
nished, provided  costs  are  paid  as  they  accrue. 


CHAPTER  XL 


APPEALS. 


I 


In  actions  at  law,  final  judgments  and  orders  may  be  reviewed 
on  writ  of  error,  or  petition  in  error  sued  out  a^y  time  within 
three  yearc  after  rendition. 

In  chancery  cases,  review  may  be  had  by  appeal,  if  the  appeal 
is  perfected  within  thirty  days  after  the  decree  complained  of. 

Where  the  judgment  or  decree  sought  to  be  reviewed  is  for 
the  payment  of  money,  security  must  be  given  in  double  the 
amount  of  the  decree  or  judgment.  In  other  cases  the  amount 
of  security  is  fixed  by  the  Court. 


CHAPTER  XII. 


ESTATES  OF  DECEASED  PERbOKR, 


Estates  of  deceased  persons  are  H(3ttled  in  the  Probatt  Courts 
through  the  usual  means  of  executors  and  adriiinistrators. 


Chap.  12.] 


WYOMING. 


229 


Claims  against  the  estate  must  be  presented  within  one  year 
after  the  granting  of  letters  testamentary  or  of  administration, 
and  if  not  so  presented,  are  forever  barred. 

Every  executor  and  administrator  must  exhibit  a  statement  of 
the  accounts  of  his  administration  for  settlement,  with  proper 
vouchers,  to  the  Probate  Court,  .^t  its  first  term  affcer  the  end  of 
six  months  from  the  date  of  his  let*^^ers,  and  at  the  corresponding 
term  of  Court  every  six  months  until  administration  be  completed. 


CHAPTER  XIII. 


DESCENTS  AND  DISTEIBUTION  OF  PROPERTY. 


ed 
lin 

eal 

for 
the 
lint 


urts 


1.  Whenever  any  person  having  title  to  any  real  estate,  or 
property  having  the  nature  or  legal  character  of  real  estate,  or 
pei*sonal  estate  undisposed  or  otherwise  limited  by  marriage 
settlement,  shall  die  intestate  as  to  such  estate,  it  shall  descend 
and  be  distributed  in  parcenary  to  his  kindred,  male  and  female, 
subject  to  the  payment  of  his  debts,  ia  the  following  course  and 
■nanner,  namely:  If  such  intestate  leave  a  husband  or  wife  and 
children,  or  the  descendants  of  any  children,  him  or  her  surviv- 
Ag,  on^  '  alf  of  such  estate  shall  descend  to  such  surviving 
husband  or  wife,  and  the  residue  thereof  to  such  surviving  chil- 
dren and  descendants  of  children  as  hereinafter  limited;  if  such 
intestate  leave  a  husband  or  wife  and  no  child  nor  descendants 
of  any  child,  theu  the  real  and  personal  estate  of  such  intestate 
shall  descend  as  follows,  to  wit:  Three-fourths  thereof  to  such 
surviving  husband  or  wife,  and  one-fourth  thereof  to  the  father 
and  mother  of  the  intestate,  or  the  survivor  of  them.  Provided, 
That  if  the  estate  of  such  intestate,  real  and  personal,  does  not 
exceed  in  value  the  sum  of  ten  thousand  dollars,  then  the  whole 
thereof  shall  descend  to  and  vest  in  the  surviving  husband  or 
wife  as  his  or  her  absolute  estate,  subject  to  the  payment  of 
debts  as  aforesaid.  Dower  and  the  tenacy  by  the  courtesy  are 
abolishtd,  and  neither  husband  nor  wife  shall  have  any  share  in 


230 


WYOMIKG. 


[Part  7. 


I   I 


the  estate  of  the  other  save  as  herein  provided.  Except  in  cases 
above  enumerated,  the  estate  of  any  intestate  shall  descend  and 
be  distributed  as  follows: 

First, — To  his  children  surviving,  and  the  descendants  of  his 
children  who  are  dead,  (the  descendants  collectively  taking  the 
share  their  parent  would  have  taken  if  living). 

Second. — If  tht  ;  ^  •  •  o  children  nor  their  descendants,  then 
to  his  father,  mothe.,  ;hers  and  sisters,  and  to  the  descend- 
ants of  brothers  and  ^isters  who  are  dead,  (the  descendants 
collectively  taking  the  share  their  parent  would  have  taken  if 
living)  in  equal  parts. 

Third. — If  there  be  no  children  nor  their  descendants,  nor 
father,  mother,  brothers,  sisters,  nor  descendants  of  deceased 
brothers  or  sisters,  nor  husband  nor  Avife  living,  then  to  the 
grandfather,  grandmother,  uncles,  aunts  and  their  descendants, 
(the  descendants  taking  collectively  the  share  of  their  imme- 
diate ancestors)  in  equal  parts. 

2.  All  posthumous  childien  or  descendants  of  the  intestate 
shall  inherit  in  like  manner  as  if  born  in  the  lifetime  of  the  in- 
testate; but  no  right  of  inheritance  shall  accrue  to  any  person 
other  than  the  children  or  descendants  of  the  intestate,  unless 
they  are  in  being,  and  capable  in  law  of  taking  as  heirs  at  the 
time  of  the  intestate's  death. 

3.  Children,  and  descendants  of  children  of  the  half-blood, 
shall  inherit  the  same  as  children  and  descendants  of  the  whole 
blood,  but  collateral  relations  of  the  half-b.ood  shall  inherit 
only  half  the  measure  of  collateral  relatives  of  the  whole  blood, 
if  there  be  any  of  the  last  named  class  living. 

4.  Wher  ^  any  of  the  children  of  the  intestate  shall  have  re- 
ceived in  his  lifetime  any  real  or  personal  estate,  by  way  of  ad- 
vancement, and  the  other  lieirs  desire  it  to  be  charged  to  him, 
the  probate  judge  shall  cite  the  parties  to  appear  before  him, 
shall  hear  proof  upon  the  subject,  and  shall  determine  the 
amount  of  such  advancement  or  advancements  to  be  thus 
charged. 

5.  The  maintenance,  education  or  supply  of  money  to  a  child 
under  the  age  of  majority,  without  any  view  to  apportion  or 
settlement  in  life,  shall  not  be  deemed  an  advancement  under 
section  four. 


!      I 


Chap.  13.] 


WYOinNG. 


231 


6.  ^he  alienage  of  the  descendants  shall  not  invalidate  any 
title  to  real  estate  which  shall  descend  from  him  or  her. 

7.  Illegitimate  children  shall  inherit  the  same  as  those  born 
in  -wedlock,  if  the  parents  subsequently  intermarry,  and  such , 
children  be  recognized  after  such  intermarriage  by  the  father  to 
be  his.     Illegitimate  children  inherit  from  the  mother,  and  the 
mother  frojn  the  children. 

8.  Divorces  of  husband  and  wife  shall  not  affect  the  right  of 
children  personally  together,  to  inherit  their  property. 

9.  Probate  judges  and  .idniinistrators  of  the  estates  of  pei'sons 
dying  intestate  within  this  Territory,  shall  apportion  and  distrib- 
ute estates'  of  intestates  according  to  this  Act. 

10.  The  rule  of  descent  of  all  property  of  whatsoever  kind  or 
nature,  real  or  personal,  of  any  bastard  or  illegitimate  person, 
dying  intestate  in  this  Territory,  and  leaving  property  and  effects 
therein,  shall  be  as  follows,  to- wit :  On  the  death  of  any  such 
person  intestate,  his  or  her  property,  estate  and  effects  shall 
descend  to  and  vest  in  the  widow,  or  the  surviving  husband  and 
children,  as  the  property  and  effects  of  other  persons  in  like 
cases.  In  case  of  the  death  of  any  such  illegitimate  person 
leaving  no  children,  or  descendants  of  a  child  or  children,  then 
the  whole  property  and  estate,  rights,  credits  and  effects  shall 
descend  to  and  vest  in  the  widow  or  surviving  husband.  In 
case  of  any  such  illegitimate  person  leaving  no  widow,  surviving 
husband,  or  descendants,  then  the  property  and  estate  of  such 
person  shall  descend  to  and  vest  in  the  mother  and  her  children, 
and  their  descendants ;  to  the  mother  one-half,  and  the  other 
half  to  be  equally  divided  between  her  children  and  their  de- 
scendants, the  descendants  of  a  child  taking  the  share  of  their 
deceased  parent  or  ancestors.  In  case  of  the  death  of  any  such 
illegitimate  person  leaving  no  heirs  as  above  provided,  then  the 
property  and  effects,  of  whatsoever  kind  or  nature,  shall  pass  to 
and  vest  in  the  next  of  kin  to  the  mother  of  such  illegitimate 
pei'son,  in  the  same  manner  as  the  estate  of  a  legitimate  person 
would,  by  law,  pass  to  the  next  of  kin. 

11.  If  any  decedent  leaves  a  widow  residing  in  this  Territory, 
in  all  cases  she  shall  be  allowed  to  have  and  retain  as  her  sole 
and  separate  property,  one  bed  and  bedding,  wearing  apparel 
for  herself  and  family,  two  cows,  her  saddle  and  bridle,  one 


f 


232 


WYOMING. 


[Part  7. 


horse,  household  furniture  for  herself  and  family,  ...d  also  the 
same  amount  and  species  of  property,  real  and  personal,  as  is  or 
may  be  by  law  exempt  from  execution.  Said  property  shall  be 
retained  by  the  widow,  and  set  apart  to  her  by  the  executor  or 
administrator,  and  shall  in  no  case  be  subject  to  the  payment  of 
debts  of  the  deceased, 

12.  When  an  inventory  shall  have  been  made  of  the  personal 
estate  of  any  testator  or  intestate,  the  widow  may  relinquish  her 
right  to  all  of  the  specified  articles  of  property  allowed  to  her  by 
the  preceding  section;  or  in  case  the  intestate  shall  not  leave  any 
or  all  of  the  articles  specified,  in  either  case  she  shall  be  entitled 
to  other  property,  or  the  value  of  the  same  in  money;  and  it 
shall  be  the  duty  of  the  administrator  or  Court  of  probate  to  al- 
low the  value  of  the  articles  specified  by  law  to  be  set  apart  to 
the  widow  of  any  intestate,  to  be  allowed  her  in  money,  or  other 
personal  property,  at  her  election. 

13.  The  right  of  a  widow  to  her  separate  property  shall  in  no 
case  be  aflfected  by  her  /enouncing,  or  failing  to  renounce,  the 
benefit  of  the  provisions  made  for  her  in  the  will  of  her  husband^ 
or  otherwise. 


CHAPTER  XIV. 


DEPOSITIONS. 


No  person  is  disqualified  as  a  witness  by  reason  of  his  interest 
in  the  event  of  suit. 

Depositions  may  be  taken  as  soon  as  a  case  is  commenced, 
and  may  be  used  when  the  witness  does  not  reside  in  the  county 
where  the  action  is  pending,  or  is  absent  therefrom;  or  when 
from  age  or  infirmity  or  imprisonment  of  the  witness  he  is  un- 
able to  attend  Court,  or  is  dead;  or  when  in  any  case  oral  ex- 
amination is  not  required;  or  in  cases  of  appeals  from  Justices 
Courts. 

They  may  be  taken  in  or  out  of  the  Territory,  before  a  justice 


Chap.  14.] 


WYOMING. 


233 


of  the  peace,  chancellor,  or  judge  of  any  Court  of  record,  no- 
tary public,  mayor,  or  chief  magistrate  of  any  city  or  town  cor- 
porate, a  commissioner  appointed  by  the  Governor  of  the  Terri- 
tory, or  any  person  authorized  by  special  commission  from  the 
Territory. 

They  may  be  taken  in  narrative  form  or  by  questions  and 
answers,  except  in  chancery  cases,  in  weich  they  must  be  taken 
on  interrogatories  and  cross-interrogatories,  settled  before  is- 
suing the  commission.  In  law  cases  they  may  be  taken  on 
notice  or  commission  issued  by  the  clerk  of  the  Court. 


CHAPTER  XV. 
JUDICIAL  RECORDS. 

The  judicial  records  of  another  State  must  be  proven  in  ac- 
cordance with  the  provisions  of  the  Act  of  Congress,  except 
judgments  of  justices  of  the  peace,  whose  proceedings  may  be 
authenticated  by  his  own  certificate,  supported  by  the  official 
certificate  of  the  clerk  of  any  Court  of  record  in  the  county  in 
which  such  justice  resides,  that  his  signature  is  genuine,  and 
that  he  is  an  acting  justice  of  the  peace  of  that  county. 


CHAPTER  XVI. 
ACKNOWLEDGMENTS. 

Deeds  or  mortgages,  executed  within  this  Territory,  of  lands 
or  any  interest  in  lands,  shall  be  executed  in  the  presence  of  two 
witnesses,  who  shall  subscribe  their  names  to  the  same  as  such; 
and  the  person  executing  such  deeds  or  mortgages  may  acknowl- 
edge the  execution  thereof  before  any  judge  or  commissioner  of  a 


234 


WYOMING. 


[Part  7. 


Court  of  record,  or  before  any  notary  public  or  justice  of  the  peace 
within  the  Territory ;  and  the  officer  taking  such  acknowledg- 
ment shall  endorse  thereon  a  certificate  of  the  acknowledgment 
thereof,  and  the  true  date  of  making  the  same,  under  his  hand, 
and  seal  of  office  if  there  be  one. 

If  any  such  deed  or  mortgage  shall  be  executed  in  any  other 
State,  Territory  or  District  of  the  United  States,  such  deed  or 
mortgage  may  be  executed  according  to  the  laws  of  such  State, 
Territory  or  District,  by  any  officer  authorized  by  the  laws  of 
such  State,  Territory  or  District  to  take  the  acknowledgment  of 
deeds  or  mortgages  therein,  or  before  any  commissioner  ap- 
pointed by  the  Governor  of  this  Territory  for  such  purposes. 

In  the  cases  provided  for  in  the  last  preceding  section,  unless 
the  acknowledgment  be  taken  before  a  commissioner  appointed 
by  the  Governor  of  this  Temtory  for  that  purpose,  such  deed 
or  mortgage  shall  have  attached  thereto  a  certificate  of  the  clerk 
or  other  proper  certifying  officer  of  the  Court  of  record  of  the 
county  or  dis'^rict  within  which  such  acknowledgment  was  taken, 
under  the  seal  of  his  office,  that  the  person  whose  name  is  sub- 
scribed to  the  certificate  of  acknowledgment  was,  at  tbe  date 
thereof,  such  officer  as  he  is  therein  represented  to  be,  that  he 
knows  the  signature  of  such  person  subscribed  thereto  to  be 
genuine,  and  that  the  deed  or  mortgage  is  executed  and  acknowl- 
edged according  to  the  laws  of  such  State,  Territory,  or  District. 


CHAPTER  XVII. 


LIMITED  PARTNERSHIPS. 


Limited  part,nerships  may  be  formed  by  two  or  more  persons. 
There  may  be  general  partners  so-called,  and  special  partners. 
Parties  forming  must  sign  a  certificate  stating  : 

1.  The  name  under  which  it  is  to  be  conducted. 

2.  Nature  of  business  to  be  transacted. 


Chap.  17]. 


WYOMING. 


235 


3.  Names  and  residences  of  the  parties,  specifying  which  are 
general  and  special. 

4.  Amount  of  stock  each  special  partner  contributes  to  the 
common  stock. 

5.  Period  of  its  beginning  and  ending. 

The  certificate  must  be  acknowledged  and  recorded  in  the 
county  clerk's  office  of  the  county  in  which  principal  business  is 
to  be  done.  Each  jDartner  must  also  make  an  affidavit  that  the 
sums  stated  in  the  certificate  have  been  actually  paid  in;  the  cei*- 
tificate  must  be  published.  The  general  partners  only  have 
authority  to  transact  the  business.  The  general  partners  are 
liable  to  the  same  extent  as  general  partners  in  any  partnershii?. 


CHAPTER  XVIII. 


MAREIED  WOMEN. 


Married  women  retain  their  property,  real  and  personal, 
which  they  had  at  marriage,  or  which  they  acquire  thereafter 
from  any  person  other  than  their  husband,  in  good  faith,  as 
their  own,  free  from  the  husband's  control,  and  free  from  lia- 
bility for  his  debts.  They  may  bargain,  sell  and  convey  person- 
al property  as  if  they  were  sole;  may  make  a  will,  be  sued  and 
sue  as  if  they  were  sole;  may  carry  on  any  trade  or  business  on 
their  own  account.  The  husband  is  not  liable  for  the  debts  of 
the  wife  contracted  before  marriage.  When  judgment  is  ren- 
dered against  both  for  the  tort  of  the  wife,  the  judgment  must 
be  satisfied  first  out  ot  the  property  of  the  wife,  if  she  have 
any. 


236 


WYOMING. 


[Part  7. 


CHAPTER  XIX. 

CHATTEL  MORTGAGES*. 

Chattel  mortgages  must  be  executed  in  the  presence  of  two 
witnesses,  and  acknowledged  before  some  one  authorized  to  take 
acknowledgment  of  deeds,  and  filed  in  the  ofl&ce  of  the  county 
recorder  of  the  county  where  the  property  is;  and  it  then  be- 
comes a  lien  on  the  propertj'  described  therein,  and  the  lif  n  is 
good  until  the  debt  secured  by  the  mortgage  is  due,  and  for  two 
mouths  thereafter,  unless  before  expiration  of  the  two  months 
foreclosure  proceedihgs  be  commenced,  in  which  case  lien  con- 
tinues until  termination  of  such  proceedings;  and  if  it  so  pro- 
vide, the  property  mortgaged  may  be  left  in  possession  of  the 
mortgagor.     All  goods  and  chattels  may  be  mortgaged. 


CHAPTER   XX. 


INTEREST  AND  USURY. 


The  legal  rate  of  interest  is  twelve  per  cent,  per  annum;  but 
any  rate  that  may  be  agreed  on  is  legal.  Judgments  draw  twelve 
per  cent,  from  the  date  of  their  rendition. 


CHAPTER  XXI. 


ASSIGNMENTS. 


An  insolvent  debtor  may  make  an  assignment  and  is  considered 
insolvent  when  unable  to  pay  his  debts  as  they  become  due. 


Chap.  21.] 


WYOMING. 


237 


An  assignment  is  void  against  creditor  not  assenting  in  follow- 
ing cases : 

1.  If  it  gives  preference. 

2.  If  it  tends  to  coerce  any  creditor  to  release  or  compromise 
his  demand. 

3.  If  it  provide  for  the  payment  of  any  claim  known  to  be 
false,  or  the  payment  of  more  upon  one  claim  than  is  known 
to  be  due. 

• 

4.  If  it  reserve  to  the  assignor  any  interest  beforo  all  debts  are 
paid. 

5.  If  it  confer  upon  assignee  any  power  which,  if  exercised, 
might  delay  the  execution  of  the  trust. 

6.  If  it  exempt  him  from  liability  for  neglect  or  misconduct. 
The  deed  must  be  in  writing,  signed,  sealed,  acknowledged, 

and  recorded  in  the  office  of  the  probate  judge  of  the  proper 
county,  otherwise  it  is  void  against  all  parties  not  assenting 
thereto. 

The  assignor  must  make  and  tile  an  inventory  of  the  estate 
within  twenty  days  after  the  assignment. 

The  assignee  must,  within  thirty  days  after  the  assignment, 
enter  into  bonds  to  be  fixed  by  the  probate  judge,  conditioned 
for  the  faithful  accounting  of  moneys  and  discharge  of  the  trust. 

After  six  months  from  date  of  assignment,  the  assignee  may 
be  required  to  account  on  petition  of  any  creditor.  And  the 
probate  judge  must,  as  soon  as  possible,  settle  the  estate. 

In  all  cases  where  the  assignor  complies  with  the  provisions  of 
the  act,  any  creditor  accepting  from  the  assignee  1  is  dividend 
arising  from  the  property  of  the  assignor,  to  which  lie  would  be 
entitled  under  any  assignment  made  under  the  act,  shall  release 
the  assignor  from  all  further  liability  on  the  claim  or  claims  on 
which  said  payment  may  be  made. 


fgm-mgffggiKfmmmmmmimM 


PART  VIII. 


MONTANA  TERRITORY. 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  W.  E.  CULLEN, 

HELENA. 


CHAPTER  I. 
COUETS,  THEIE  JURISDICTION  AND  TERMS. 

The  Courts  of  the  Territory  are  a  Supreme  Court,  District 
Courts,  Probate  Court,  and  Justice  of  the  Peace. 

The  Supreme  Court  has  appellate  jurisdiction  only. 

The  District  Courts  have  original  jurisdiction  of  all  civil  cases 
where  the  amount  in  controversy  exceeds  fifty  dollars,  and  of  all 
felonies;  also  appellate  jurisdiction  from  the  Probate  and  Jus- 
tices' Courts. 

The  Probate  Court,  in  addition  to  Probate  matters,  has  juris- 
diction in  civil  actions  to  the  amount  of  five  hundred  dollars; 
except  where  the  title  or  right  to  the  possession  of  land  is  in 
question,  and  in  chancery  and  divorce  cases.  The  Probate 
Court  also  has  jurisdiction  of  such  criminal  oases  arising  under 
the  laws  of  the  Territory  as  do  not  require  the  intervention  of  a 
grand  jury. 

Justices  of  the  Peace  have  jurisdiction  where  the  title  of  land 


,  1 


I   i: 


240 


MONTANA. 


[Parts. 


is  not  in  dispute,  and  where  tbe  debt  or  sum  claimed  does  not 
exceed  one  hundred  dollars. 

The  District  Court,  -^hen  sitting  at  Helena,  Deer  Lodge,  and 
Virginia  City,  ha"?  the  same  juricdiction  as  the  Circuit  and  Dis- 
trict Courts  oi  4/he  United  States,  and  the  first  six  days  of  each 
term  at  said  plaees  are  appropriated  to  the  trial  of  causes  arising 
under  the  constitution  and  laws  of  the  United  States. 

Tebms  of  Distbict  Courts,  1876. 


COUNTY. 

COUNTY  8BAT. 

DIIT. 

WHIIN  IIBI.O. 

Beaverhead... 
Deer  Lodge. . . 

Gallatin 

Jefferson 

Madi»nn 

Meaj^'her 

Meiwoula 

Lewis  &  Clark. 

Bannank 

Deer  Lodge 

Bozemon 

Radersburg 

VirginaCity 

Diamond  City. . . 

Meissoula 

Helena. 

2d.... 
2d. . . . 
1st  ... 
3d.... 
l8t  . . . 
8d.... 
2d.... 
3d.... 

First  Monday  in  June,  second  Monday  in  October. 
Second  Monday  in  April,  flrst  &ionday  in  Septeml>er. 
First  Monday  ni  May,  second  Monday  in  October. 
First  Monday  in  April,  flrst  Monday  in  t.Kiiober. 
Third  Monday  in  March,  third  Monday  in  8e|>tember. 
Fourth  Monday  in  May,  fourth  Monday  in  October. 
Fourth  Monday  in  June,  ;;Cv,-ond  Monday  in  November. 
First  Monday  in  March,  second  Monday  in  September, 
and  firct  Monday  in  November. 

Terms  of  the  Supreme  Court  are  held  at  the  capital,  Helena, 
<on  first  Monday  in  January  and  second  Monday  ia  August. 


CHAPTER   II. 


TIME    ALLOWED    DEFENDANT    TO    ANSWER— PLACE 
OF  TRIAL  OF  CIVIL  ACTIONS. 

Time  Allowed  Defendant  to  Answer. 

Ten  days  if  served  in  the  county,  twenty  days  if  served  out- 
side the  county  but  in  the  district;  forty  days  in  all  other  cases. 

Place  of  Trial  of  Civil  Actions. 

Actions  for  the  recovery  of  real  estate,  or  for  injuries  thereto, 
for  partition  thereof,  or  for  foreclosure  of  mortgage  thereon, 
must  be  tried  in  the  county  where  the  same  is  situated. 


Chap.  2.] 


MONTANA. 


aa 


Actions  for  the  recovery  of  a  penalty  or  forfeiture  imposed  by 
statute,  or  against  a  public  officer,  must  be  tried  in  the  county 
where  the  cause  arose. 

In  all  other  cases  the  action  is  to  be  tried  in  the  county  in 
which  the  defendant  may  reside,  or  in  the  county  where  the 
plaintiff  resides  and  the  defendant  may  be  found. 


CHAPTER   III. 


LIMITATION  OF  ACTIONS. 


Upon  a  judgTPent  or  decree  of  a  United  States  Court,  or  of 
any  State  or  Territory,  six  years. 

Upon  any  contract,  obligation  or  liability,  founded  upon  an 
instrument  of  writing,  six  years. 

Actions  for  the  recovery  of  real  property,  or  the  possession 
thereof,  must  be  commenced  within  five  years. 

Actions  for  waste  or  trespass  upon  real  property;  for  a  liability 
created  by  statute,  other  than  a  penalty  or  forfeiture;  for  taking, 
detaining  or  injuring  goods  or  chattels,  and  for  relief  on  the 
ground  ^f  fraud,  must  be  commenced  within,  two  years. 

Actions  against  a  sheriflF,  coroner  or  constable,  for  any  act  in 
his  official  capacity,  must  be  commence'^  within  two  years. 

Actions  upon  an  account,  contract,  obligation  or  liability  not 
founded  upon  an  instrument  of  wriVng,  must  be  commenced 
within  two  years. 

An  action  for  libel,  slander,  assault,  battery  or  falso  imprinon- 
ment,  must  be  commenced  within  two  years. 

An  action  upon  a  statute  for  a  penalty  or  forfeiture,  or  an  ac- 
tion against  a  (sheriff  or  other  officer  for  the  escape  of  a  prisourr, 
arrested  upon  civil  process,  must  be  commenced  within  one  year. 

There  is  no  limitation  upon  the  right  to  maintain  an  action  for 
the  recovery  of  money  or  other  property  deposited  with  any 
bank,  banker,  ti*ust  company,  or  savings  and  loan  society. 

Actions  for  relief  not  provided  for,  as  above,  must  be  com- 
menced within  three  years  after  the  cause  of  action  accrued. 


Ml 


242 


MONTANA. 


[Part  8. 


If  the  party  against  whom  the  action  accrues  is  out  of  the 
Territoiy  at  the  time,  the  statute  does  not  run  until  his  return, 
and  if,  after  the  action  has  accrued,  he  depart  from  the  Terri- 
tory, the  time  of  his  absence  is  not  a  part  of  the  time  hmited 
for  the  commencement  of  an  action.  A  part  payment  revives  a 
debt  which  has  been  barred.  No  acknowledgment  or  promise 
is  sufficient  to  take  a  case  out  of  the  statute,  unless  it  be  in 
writing  and  signed  b}'  the  party  to  be  charged.  A  cause  of 
action  arising  in  any  other  State  or  Territory,  and  barred  by  the 
laws  of  such  State  or  Territory,  cannot  be  maintained  here. 


CHAPTER   IV. 
ATTACHMENTS— AERESTS  IN  CIVIL  CASES. 

Attachments. 


\ 


An  attachment  will  issue  in  all  cases  where  an  affidavit  is  made 
by  or  on  bthalf  of  the  plaintiff,  that  the  defendant  is  indebted 
to  the  plaintiff  upon  a  contract  for  the  payment  of  money,  gold 
dust  or  other  property  then  due,  which  is  not  secured  by  a 
mortgage,  lien  or  pledge  upon  either  real  or  personal  property; 
and  upon  giving  an  undertaking  in  double  the  amount  of  the 
debt  sought  to  be  recovered,  unless  the  sum  claimed  equals  or 
exceeds  ten  thousand  dollars,  in  which  case  the  undertaking  is 
only  required  to  be  hi  the  sum  of  ten  thousand  dollars,  con- 
ditioned that  the  plaintiff  will  pay  all  costs  that  may  be  awarded 
to  the  defendant,  and  all  damages  which  he  may  sustain  by  rea- 
son of  such  attachment,  if  the  defendant  recovers  judgment,  or 
the  Court  finally  decides  that  the  plaintiff  was  not  entitled  to 
an  attachment. 

Arrests  in  Civil  Cases. 

Anest  may  be  had  in  all  cases  of  fraud,  or  when  the  action  is 
for  willful  injury  to  person  or  character,  or  to  property,  know- 
ing the  property  to  belong  to  another. 


Chap.  6.1 


MONTANA. 


243 


CHAPTER  V. 

JUDGMENT  LIENS,  EXECUTIONS,  EXEMPTIONS,  SALE, 

AND  REDEMPTION. 


A  judgment  rendered  by  the  District  Coui-t  is  a  lien  upon  all 
the  real  estate  of  defendant  in  the  county  wherein  it  is  docket- 
ed, and  is  such  lien  for  the  pei*iod  of  six  years. 

Execution  may  be  issued  at  any  time  within  six  years  after  the 
entry  of  the  judgment.  Executions  may  be  issued  to  several 
counties  at  the  same  time. 

The  following  articles  are  exempt  from  execution:  Wearing 
apparel  of  judgment  debtor  and  family,  also,  all  chairs,  tables, 
desks,  to  the  value  of  $100;  all  necessary  household  and  kitchen 
furniture,  including  stoves,  stovepipes  and  stove  furniture,  beds, 
bedding  and  provisions, and  fuel  actually  provided  for  use  sufficient 
for  two  months;  and  also  one  hors  vo  cows  with  their  calves, 
two  swine  and  fifty  domestic  fowls;  a^ao  to  a  farmer,  farming 
utensils  not  exceeding  in  value  six  hundred  jUars,  also  two 
oxen  or  one  horse,  or  mule  and  their  harness,  *  ^o  'ows,  >ne 
cart  or  wagon,  and  food  for  such  animals  foi  three  mouths;  also 
all  seed  grain  or  vegetables  actually  reserved  for  planting  or 
sowing  at  any  time  within  six  months,  not  exceeding  in  value 
the  sum  of  two  hundred  dollars. 

To  a  mechanic  or  artisan,  tools  or  implements  necessary  to 
carrj'  on  his  trade. 

To  a  physician,  surgeon  or  dentist,  the  instruments  au«  ost 
necessary  to  the  exercise  of  his  profession,  together  with  his 
library. 

To  an  attorney  at  law,  ov  a  minister  of  the  Gospel,  their  libra- 
ries. 

To  a  miner,  his  cabin,  not  to  exceed  in  value  $500;  also  his 
sluices,  pipes,  liobe,  windlasses,  derrick,  cars,  pumps,  tools,  im- 
plemeuts  and  appliances  necessary  for  mining,  not  exceeding  in 
value  in  the  aggregate  the  sum  of  $500;  also  one  horse  or  mule, 
or  two  oxen,  and  food  for  the  same  for  three  months,  and  their 


244 


MONTANA. 


[Part  8. 


harness,  when  necessary  to  be  used  for  any  windlass,  derrick  or 
pump. 

To  a  cartman,  truckster,  peddler,  teamster  or  laborer,  one 
horse  or  mule,  or  two  oxen  and  their  harness,  and  one  cart  or 
wagon,  by  the  use  of  which  such  person  habitually  earns  his 
living;  also  food  for  such  animals  for  three  months. 

Also  the  earnings  of  the  judgment  debtor  for  thirty  days* 
next  preceding  the  levy  of  execution,  when  such  earnings  are 
necessary  for  the  support  of  the  debtor's  family. 

A  homestead  not  exceeding  in  value  $2500;  if  agricultural 
land,  not  more  than  eighty  acres;  if  within  the  limit  of  a  town 
or  city  or  village,  not  more  than  one-fourth  of  an  acre. 

The  sheriff  is  required  to  give  notice  of  sale  as  follows:  by  post- 
ing notice  of  the  time  and  place  of  such  sale  in  three  public 
places  of  the  township  or  city  where  the  sale  is  to  take  place, 
for  such  time  as  may  be  reasonable  in  case  of  perishable  prop- 
erty; in  case  of  other  personal  property,  not  less  than  five  nor 
more  than  ten  days. 

In  case  of  real  property,  by  posting  a  similar  notice  for  twenty 
days,  and  publishing  a  copy  thereof  once  a  week  for  the  same 
period  in  some  newspaper  published  in  the  county;  if  there  be 
one.  In  all  sales  of  real  property,  where  the  estate  is  greater 
than  the  unexpired  term  of  a  two  years'  lease,  the-  same  may  be 
redeemed  within  six  months  from  such  sale,  by — first,  the  judg- 
ment debtor,  second,  a  creditor  having  a  lien  by  judgment  or 
mortgage  on  the  property  sold,  or  some  part  thereof. 


CHAPTER  VI. 


PROCEEDINGS    SUPPLEMENTARY    TO    EXECUTIONS. 


When  an  execution  is  returned  unsatisfied,  the  judgment  cred- 
itor may  compel  the  debtor  to  appear  before  a  judge  and  answer 


Chap.  6.] 


MONTANA. 


245 


concemiiig  his  property,  and  upon  such  hearing  witnesses  may 
be  examined.  If  any  property  is  found,  the  judge  may  order 
the  same  applied  on  execution. 


CHAPTER  VII. 


SECURITY  FOR  COSTS— APPEALS. 

Security  for  Costs. 

Security  may  be  required  in  all  cases  where  suit  is  brought  by 
a  non-resident ;  and  where  such  security  is  required,  all  pro- 
ceedings are  stayed,  and  the  action  will  be  dismissed  unless  an 
undertaking  is  filed  in  such  an  amount  as  may  be  fixed  by  the 
Court  within  thirty  days. 

Appeals. 
Same  as  in  California. 


CHAPTER  VIII. 
ESTATES  OF  DECEASED  PERSONS.    . 

The  widow  or  minor  children  of  a  deceased  person  are  entitled 
to  remain  in  possession  of  the  homestead,  of  all  wearing  apparel 
and  household  furniture  of  the  decedent,  and  are  also  entitled 
to  a  reasonable  i)rovision  for  their  support. 

The  wife  and  minor  children  are  entitled  to  the  homestead  if 
there  be  one,  and  to  all  personal  property  of  the  decedent  ex- 
empt from  execution.  If  upon  the  return  of  the  inventory  it 
appears  that  the  value  of  the  whole  estate  does  not  exceed 
§1500,  it  must  be  assigned  for  the  use  of  the  widow  and  minor 


246 


MONTANA. 


[Part  8. 


children,  after  the  payment  of  the  expenses  of  the  last  illness, 
funeral  charges,  and  the  expense  of  administration. 

Every  executor  or  administrator  must  immediately  after  his 
appointment  publish  a  notice  to  the  creditors  of  the  estate  re- 
quiring them  to  present  their  claims  to  him  with  proper  vouch- 
ers. If  the  value  of  the  estate  exceeds  ten  thousand  dollars, 
such  claims  must  be  presented  within  ten  months;  if  under  that 
sum,  within  four  months;  and  unless  they  are  so  exhibited 
within  the  time  aforesaid  they  are  barred.  Every  claim  must 
be  supported  by  the  affidavit  of  the  claimant,  or  some  one  in  his 
behalf,  setting  forth  that  the  claim  is  justly  due,  that  no  pay- 
ments have  been  made  thereon  which  are  not  credited,  and  that 
there  are  no  offsets  to  the  same.  If  the  claim  is  not  due  when 
presented,  or  is  contingent,  the  particulars  must  be  stated. 
When  claims  are  thus  exhibited,  the  administrator  must,  within 
ten  days,  endorse  upon  it  his  allowance  or  rejection  with  date 
thereof.  If  he  allows  the  claim,  it  must  be  presented  to  the 
probate  judge  for  his  approval,  who  must  in  the  same  manner 
endorse  upon  it  his  allowance  or  rejection.  A  failure  by  either 
of  said  officers  for  a  period  of  ten  days  to  make  such  endorse- 
ment is  equivalent  to  a  rejection. 

When  a  claim  has  been  rejected  either  by  the  administrator 
or  probate  judge,  the  holder  must  bring  suit  within  three  months 
from  the  date  of  such  rejection,  if  it  be  then  due,  or  within  two 
after  it  becomes  due,  otherwise  the  claim  is  barred. 


CHAPTER  IX. 


DEPOSITIONS— JUDICIAL  RECORDS— ACKNOWLEDG- 
MENTS. 


Depositions. 
Same  1a w  as  in  California,  from  which  our  code  was  taken. 


Chap.  9.1 


MONTANA. 


Judicial  Records 


247 


Of  another  State  or  Territory  are  proved  by  the  production  of 
exemplified  copies. 

Acknowledgments. 

Every  conveyance  affecting  real  estate  must  be  in  writing  and 
acknowledged,  or  proved  and  certified.  The  following  is  a  gen- 
eral form  of  acknowledgment,  viz  : 


Territory  of  Montana, 
County  of 


ss. 


Be  it  remembered,  that  on  this day  of- 


-,  187—,  per- 


sonally appeared  before  the  undersigned,  a  [title  of  office]  within 

and  for  the  county  aforesaid,  personally  appearing,  came 

to  me,  personally  known  to  me  to  be  the  same  person  mentioned 
in  and  who  executed  the  foregoing  instrument,  and  he  acknowl- 
edged to  me  that  he  had  so  executed  the  same  freely  and  volun- 
tarily, and  for  the  uses  and  purposes  therein  expressed. 

Witness  my  hand,  etc. 

If  a  married  woman  is  a  party,  the  certificate  must  state  that 
the  officer  examined  her  apart  from  and  without  the  healing  of 
her  husband,  and  that  she  then  acknowledged  that  she  executed 
the  same  freely  and  voluntarily,  without  fear  of  or  under  coioa- 
pulsion  of  her  said  husband,  and  that  she  did  not  wish  to  retract 
the  execution  of  the  same. 


CHAPTER  X. 


LIMITED  PARTNERSHIPS 

May  be  created  by  two  or  more  persons  who  shall  be  responsi- 
ble as  general  partners,  and  two  or  more  persons  who  shall  con- 
tribute to  the  common  stock  a  specific  sum  in  actual  cash  pay- 
ments. 


248 


MONTANA. 


[Parts. 


The  special  partners  not  to  be  liable  for  any  debt  of  tho  part- 
nership. In  order  to  create  such  partnership  it  is  necessary 
that  a  certificate,  stating  the  name  of  the  partnership  firm,  the 
place  of  residence  of  each  of  the  general  and  special  partners, 
the  amount  of  the  capital  which  each  special  partner  has  con- 
tributed, the  general  nature  of  the  business,  the  time  when  the 
partnership  is  to  commence  and  when  it  is  to  terminate,  shall  be 
made,  acknowledged  and  recorded  in  the  office  of  the  county 
recorder  of  the  county  in  which  the  principal  place  of  business 
of  the  parnership  is  located.  Any  false  statement  in  such  cer- 
tificate subjects  all  parties  to  liability  as  general  partners. 


CHAPTER  XI. 


MARRIED  WOMEN 


Are  liable  on  their  contracts  made  for  benefit  of  or  with  refer- 
ence to  their  separate  property.  They  may  become  sole  traders 
by  filing  a  certificate  in  the  county  recorder's  office,  and  conduct 
business  as  a.femme  sole. 


CHAPTER  XII. 


CORPORATIONS— CHATTEL  MORTGAGES — INTEREST . 

Corporations. 

There  is  no  individual  liability  of  stockholders  for  indebted- 
ness of  a  corporation,  beyond  the  amount  of  the  unpaid  stock 
which  they  hold. 

Chattel  Mortoages. 

All  personal  jwoperty  may  be  pledged  or  mortgaged,  and  such 


. 


Chap.  12.  J 


MONTANA. 


249 


mortgages  must  be  foreclosed  promptly  when  due.     No  chattel 
mortgage  can  be  made  for  a  longer  period  than  twelve  months. 

Interest  and  Usury. 

The  legal  rate  of  interest  is  ten  per  cent.,  but  any  rate  for 
which  parties  may  contract  is  collectable.  There  is  no  usury 
law. 


CHAPTER  XIII. 


INSOLVENCY. 
There  is  no  insolvency  law  in  this  Territory. 


.,  >p '" 


P! 


PART  IX. 


Washington  territory. 


PREPARED   EXPRESSLY  FOR  THIS  WORK  BY  THE  HON.  JAMES 
K.  KENNEDY,  WALLA  WALLA. 


CHAPTER  I. 


COURTS  AND  THEIR  JURISDICTION. 

The  Territory  is  divided  into  three  judicial  districts,  each  hav- 
ing a  judge,  who  together  compose  the  Supreme  Court. 

The  Supreme  Court  has  appellate  jurisdiction  only,  and  causes 
are  removed  to  it  from  the  District  Courts  by  writs  of  error  or 
appeals. 

The  several  District  Courts  have  general  common  law  and 
chancery  jurisdiction,  in  all  matters  where  the  amount  in  con- 
troversy exceeds  one  hundred  dollars.  They  have  also  general 
jurisdiction  in  causes  arising  under  the  laws  of  the  United  States, 
and  in  admiralty  and  bankruptcy. 

There  is  a  Probate  Court  in  each  county,  holding  six  terms 
each  per  annum,  having  statutory  jmisdiction  in  all  matters 
pertaining  to  decedent's  estates,  and  the  guardianship  and  estates 
of  minors  and  insane  persons.  They  have  no  common  law 
jurisdiction  except  such  as  is  strictly  necessary  to  carry  out  and 
enforce  tht!.t  defined  by  statute. 


252 


WASHINGTON. 


[Part  9. 


Justices  of  the  Peace  have  jurisdiction  coextensive  with  the 
limits  of  their  respective  counties,  over  all  causes  arising  on 
contract  for  the  recovery  of  money  only,  when  the  sum  claimed 
does  not  exceed  one  hundred  dollars,  and  in  actions  for  damages 
for  injury  to  person  or  property,  or  for  taking  or  detaining  or  in- 
juring personal  property,  if  the  damages  claimed  do  not  exceed  one 
hundred  dollars;  also  in  actions  to  recover  the  possession  of 
personal  property  where  the  value  does  not  amount  to  one  hun- 
dred dollars;  also  in  actions  on  undertakings  or  bonds,  when 
the  penalty  or  amount  claimed  does  not  exceed  one  hundred 
dollars;  also  in  actions  for  the  foreclosure  of  mortgages,  or  the 
enforcement  of  liens  on  personal  property,  when  the  debt  se- 
cured does  not  exceed  one  hundred  dollars;  also  in  actions  for 
damages  for  fraud  and  deceit  in  the  sale,  purchase,  or  exchange 
of  personal  property,  when  the  damages  claimed  do  not  exceed 
one  hundred  dollars;  also  in  actions  of  forcible  entry  and  de- 
tainer; also  in  actions  to  try  the  right  of  possession  to  mining 
claims.  They  may  also  take  and  enter  judgment  on  the  confes- 
sion of  a  defendant,  or  upon  default  for  a  failure  to  appear  or 
answer. 


CHAPTER  II. 


TERMS  OF  COURTS— WHEN  AND  WHERE  HELD. 


The  Supreme  Court  holds  one  term  in  each  year,  at  Olympia. 
commencing  on  the  second  Monday  of  July. 

The  District  Court  of  the  first  judicial  district,  Hon.  S.  C. 
Wingard,  judge,  is  held  for  the  county  of  Walla  Walla  at  Walla 
Walla  City,  on  the  first  Monday  of  May  and  fourth  Monday  of 
November;  for  the  county  of  Yakima,  at  Yakima  City,  on  the 
first  Monday  of  October  of  each  year;  for  the  county  of  Whit-' 
man,  at  Colfax,  on  the  first  Monday  of  June  of  each  year;  for 
the  county  of  Columbia,  at  Dayton,  on  the  third  Monday  of 
June  and  second  Monday  of  December;  for  Stevens  county,  at 
Fort  Colville,  on  the  second  Monday  of  August. 

The  District  Court  of  the  second  judicial  district,  Hon.  R.  S. 


Chap.  2.] 


V*  lSHINGTON. 


258 


Green,  judge,  is  held  for  the  counties  of  Klickitat,  Skamania 
and  Clark,  at  Vancouver,  on  tiio  third  Monday  of  March  and 
third  Monday  of  October  of  each  year;  for  the  countieH  of  Cow- 
litz and  Wahkiakum,  at  Kalama,  on  the  first  Monday  in  Janu- 
ary and  the  fourth  Monday  in  June;  for  the  counties  of  Thur- 
ston, Lewis,  Mason  and  Chehalis,  at  Olympia,  on  the  first  Mon- 
day in  A])ril  and  first  Monday  in  December;  for  the  county  of 
Pacific,  t?,t  Oysterville,  on  the  second  Monday  of  August. 

The  District  Court  of  the  third  judicial  district,  Hon.  J.  R. 
Lewis,  C.  J.,  judge,  is  held  for  the  county  of  Pierce,  at  Steila- 
coom,  on  the  second  Monday  of  January  and  first  Monday  of 
August;  for  the  counties  of  King  and  Kitsap,  at  Seattle,  on  the 
fourth  Monday  of  January  and  third  Monday  of  August;  for 
the  counties  of  Jefferson,  Island,  San  Juan  and  Clallam,  at 
Port  Townsend,  on  the  fourth  Monday  of  February  and  fourth 
Monday  of  September.  The  District  Court  for  Whatcom  county 
is  held  at  La  Conner,  on  the  first  Tuesday  of  June  and  the  first 
Tuesday  of  December. 

In  addition  to  the  above  terms  of  Court,  prescribed  by  Act  of 
the  Legislative  Assembly,  power  is  given  to  the  judges  of  each 
district  to  appoint,  by  rule  from  time  to  time,  two  special  terms 
in  each  year,  at  which  to  transact  all  business,  except  trials  by 
jury,  and  the  hearing  causes  on  their  merits. 

Terms  of  the  Probate  Courts  are  held  at  the  county  seat  of 
each  county  on  the  fourth  Mondays  of  January,  March,  May, 
July,  September  and  November  of  each  year. 

Justices'  Courts  are  always  open  for  the  transaction  of  busi- 
ness. 


CHAPTER   III. 


at 


S. 


COMMENCEMENT    OF     SUITS— TIME    ALLOWED     TO 

ANSWER. 

Actions  in  the  District  Courts  are  commenced  by  filing  the  com- 
plaint with  the  clerk,  and  the  issuing  a  summons  thereon  at  any 


254 


WASHINGTON. 


[Part  9. 


time  within  one  year  of  B'  h  filing  The  defendant  is  required 
to  answer  the  complaint  as  follows  :  if  served  within  the  county 
where  the  action  is  brought,  twenty  days ;  if  served  out  of  the 
county  but  in  the  district  in  which  the  action  is  brought,  thirty 
days ;  if  served  in  any  other  district,  forty  days  ;  if  served  by 
publication,  within  sixty  days  from  the  date  of  the  summons. 

If  the  defendant  fails  to  appear  and  answer  according  to  the 
requirements  of  the  summons,  the  pi  intifF  is  entitled  to  have 
the  default  entered,  and  judgaient  for  the  amount  specitJed  in 
the  summons,  or  for  the  relief  prayed  for  in  the  complaint. 
The  complaint  and  all  subsequent  proceedings  m  an  action, 
except  a  demurrer,  must  be  verified  by  the  party,  (his  agent  or 
attorney,  in  the  county  where  the  action  is  brought)  to  the  effect 
that  he  believes  it  to  be  true.  All  common  law  forms  of  plead- 
ings, and  all  distinctions  between  law  and  equity  as  to  form,  are 
abolished,  and  the  code  system  adopted. 

In  Probate  Court,  most  of  the  business  can  be  commenced, 
preliminary  orders  granted,  and  writs  issued  by  the  judi^e  in 
vacation.  Orders  or  decrees  for  the  sale  of  real  estate,  the  net- 
tlement  of  estates,  and  discharge  of  executors,  administrators, 
or  guardians,  and  fina)  orders  and  decrees  generally,  must  be 
heard  and  decided  in  cerm  time. 

Actions  are  commenced  in  Justices'  Courts  by  filing  with  the 
justice  a  complaint  or  account,  verified  by  the  party,  his  agent 
or  attorney,  to  the  eiiect  that  he  believes  it  to  be  true,  and  thd 
issuance  of  a  summons  or  notice  theroon.  The  summons  or 
notice  is  returnable  in  not  less  than  six,  nor  more  than  twenty 
days,  from  the  filing  the  complamt. 


Chap.  4.] 


WASHINGTON. 


I 

255 


CHAPTER   IV. 
PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  recovery  of  the  possession  of,  or  for  the  fore- 
closure of  a  mortgage  on,  or  in  any  wise  affecting  the  title  to  real 
property,  and  all  questions  involving  the  right  or  title  to  per- 
sonal property,  oi*  for  the  detention  or  injury  to  such  property, 
shall  be  brought  in  the  county  in  which  the  subject  of  the  action 
or  some  part  thereof  is  situated. 

Actions  for  a  penalty  or  forfeiture  imposed  by  statute,  or 
against  public  officers,  shall  be  tried  in  the  corinty  or  district 
where  the  cause  of  action  or  some  part  thereof  arose. 

Actions  against  corporations  may  be  brought  in  any  county 
\vliere  the  corporation  has  an  office  for  the  transaction  of  busi- 
ness, or  any  person  resides  upon  whom  process  against  such 
corporation  may  be  served.  In  all  other  cases  the  action  shall 
be  commenced  end  tried  in  the  district  embracing  the  county  in 
which  the  defendants  or  either  of  them  reside,  or  may  be  served 
with  process;  or  if  none  of  them  reside  in  ♦he  Tenitory,  the 
same  may  be  tried  in  any  district  or  county  which  the  plaintift" 
may  designate  in  his  complaint. 


CHAPTER   V. 


LIMITATION  OF  ACTIONS. 

The  i)eriod  prescribed  for  the  limitation  dI  actions,  from  the 
time  the  cause  of  action  accrues,  is  as  follows: 

For  the  recovery  of  real  property,  or  the  possession  thereof, 
twenty  years;  upon  a  judgment  or  decree  of  any  Court  of  the 
United  States,  or  of  any  State  or  Territory  within  the  United 


266 


WASHINGTON. 


[Part  9. 


U' 


States,  or  upon  a  contract  in  writing  or  liability,  express  or  im- 
plied, arising  out  of  a  written  agreement,  or  for  the  rents  and 
profits,  or  use  and  occupation  of  real  estate,  six  years;  for  waste 
or  trespass  upon  real  property,  or  for  taking,  detaining,  or  in- 
juring personal  property,  including  an  action  for  the  recovery 
thereof,  or  for  any  other  injury  to  the  person  or  rights  of  another 
not  hereinafter  enumerated ;  upon  a  contract  or  liability, 
express  or  implied,  which  is  not  in  writing,  and  does  not  arise 
out  of  any  written  instrument ;  for  relief  upon  the  ground  of 
fraud,  (the  cause  of  action  in  such  case  not  to  be  deemed  to 
have  accrued  until  the  discovery  by  the  aggrieved  party  of  the 
facts  constituting  the  fraud)  against  a  ministerial  officer  upon  a 
liability  incurred  by  the  doing  an  act  in  his  official  capacity,  or 
by  the  omission  of  an  official  duty,  including  the  non-payment 
of  money  collected  upon  execution  ;  upon  a  statute  for  a  penalty 
or  forfeiture,  and  for  seduction  and  breach  of  marriage  contract, 
three  years ;  for  libel,  slander,  assault,  assault  and  battery  and 
false  imprisonment,  actions  upon  a  statute  for  a  forfeiture  or 
penalty  to  the  Territory,  two  years ;  against  a  sheriflF  or  other 
officer,  for  the  escape  of  a  prisoner  arrested  or  imprisoned  on 
civil  process,  one  year. 

When  the  cause  of  action  arises  in  another*State  or  Territory, 
between  a  resident  of  that  State  or  Territory  and  of  this  Terri- 
tory, the  foregoing  limitations  apply.  When  the  cause  of  action 
arises  in  another  State  or  Territory  between  non-residents  of 
this  Territory,  and  the  same  would  be  barred  there  by  the  lapse 
of  time,  it  will  be  barred  here.  An  action  shall  be  deemed  com- 
menced as  to  each  defendant  when  the  complaint  is  filed. 


?^ 


Chap.  6]. 


WASHINGTON. 


267 


CHAPTER  VI. 
ATTACHMENTS. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any 
time  thereafter,  and  before  judgment,  may  have  the  property  of 
the  defendant  attached  as  security  for  the  satisfaction  of  such 
judgment  as  he  may  recover,  whenever  he  or  any  one  on  his  behalf 
shall  make  and  file  an  affidavit  that  a  cause  of  action  exists  against 
the  defendant,  and  the  grounds  thereof,  and  that  the  defendant 
is  either — first,  a  foreign  corporation;  or  second,  that  he  is  not 
a  resident  of  this  Territory,  or  has  departed  therefrom  with  in- 
tent to  delay  or  defraud  his  creditors,  or  to  avoid  the  service  of 
process,  or  tseps  himself  concealed  therein  with  like  intent;  or 
third,  that  he  has  removed  or  is  about  to  remove  any  of  his 
property  from  the  Territory  with  intent  to  delay  or  defraud  his 
his  creditors;  or  fouiih,  that  he  has  assigned,  secreted  or  dis- 
posed of  any  of  his  property,  or  is  about  to  assign,  secrete  or 
dispose  of  it  with  intent  to  delay  or  defraud  his  creditors;  or 
fifth,  that  the  defendant  has  been  guilty  of  a  fraud  in  contract- 
ing the  debt  or  incurring  the  obligation  for  which  the  action  is 
brought. 

Before  the  writ  issues  the  plaintiff  must  file  with  the  clerk  a 
bond,  with  one  or  more  sureties,  in  a  sum  not  less  than  one 
hundred  dollars  and  equal  to  the  amount  for  which  the  plaintiff 
demands  judgment,  to  the  effect  that  the  plaintiff  will  pay  all 
costs  that  may  be  adjudged  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  if  the  same 
be  wrongful,  oppressive,  or  without  sufficient  cause.  All  prop- 
erty may  be  attached  not  by  law  exempt  from  execution,  includ- 
ing debts  owing  to  dofendiuit.  The  defendant  may  have  the 
property  att'^.ched  delivered  to  him  by  executing  to  the  shei'iff  a 
bond,  with  surety  approved  b}  him,  to  the  effect  that  such  prop- 
erty shall  bo  properly  kept  and  delivered  upon  demand,  to  be 
held  on  execution;  or  that  he  will  pay  the  apprniKcd  value  there- 
of; or  the  defendant  may,  before  the  time  for  answering  ex- 


268 


WASraNOTON. 


[Part  9. 


pires,  apply  to  the  Court  or  judge  for  the  discharge  of  the 
attachment,  on  the  grounds  that  it  was  improperly  or  improvi- 
dently  issued. 

Writs  of  attachment  may  be  issued  by  justices  of  the  peace, 
upon  any  of  the  foregoing  grounds,  except  that  the  debt  was 
contracted  in  fraud,  and  on  the  additional  grounds  that  the  de- 
fendant is  a  non-resident  of  the  county,  or  is  secretly  leaving  or 
has  left  the  county,  with  the  intent  to  hinder,  delay,  or  defraud 
his  creditors. 


CHAPTER  VII. 

ARREST  IN  CIVIL  ACTIONS. 

The  defendant,  upon  an  order  of  the  Coiirt  or  judge  of  the 
Supreme  Court,  may  be  arrested  in  the  following  cases,  and  no 
other: 

1.  In  an  action  for  the  recovery  of  damages  on  a  cause  of  ac- 
tion not  arising  out  of  contract,  where  the  defendant  is  a  non- 
resident of  the  Territory,  or  is  about  to  remove  therefrom,  or 
where  the  action  is  for  an  injury  to  person  or  character,  or  for 
injuring  or  wrongfully  taking,  detaining,  or  converting  prop- 
erty. 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to 
marry,  or  for  money  received,  or  property  embezzled  or  fraudu- 
lently misapplied,  or  converted  to  his  own  use  by  a  public  offi- 
cer, or  by  an  attorney,  or  by  an  officer  or  agent  of  a  corporation 
in  the  course  of  his  employment  as  such,  or  by  any  factor, 
agent,  broker,  or  other  person  in  a  fiduciary  capacity,  or  for  any 
misconduct  or  neglect  in  office,  or  in  a  professional  employ- 
ment. 

3.  In  an  action  to  recover  the  possession  of  pergonal  prop 
erty  unjustly  detained,  when  the  property,  or  any  part  thereof, 
has  been  concealed,  removed,  or  disposed  of,  so  that  it  cannot 
be  found  or  taken  by  the  sheriff,  with  the  intent  that  it  should 


h. 


Chap.  7.1 


WA8HINGTON. 


259 


not  be  so  found  or  taken,  or  with  the  intent  to  deprive  the  plain- 
tiff of  the  benefit  thereof, 

4.  When  the  defendant  has  been  guilty  of  fraud  in  contract- 
ing the  debt  or  incurring  the  obligation  for  which  the  action  is 
brought,  or  in  concealing  or  disposing  of  the  property  for  the 
taking,  detention,  or  conversion  of  which  the  action  is  brouglit. 

5.  When  the  defendant  has  removed  or  disposed  of  his  prop- 
erty, or  is  about  to  do  ho,  with  lutent  to  defraud  his  creditors. 

6.  When  the  action  is  to  prevent  threatened  injury  to,  or  de- 
struction of,  property,  and  the  danger  is  imminent  that  such 
property  will  be  destroyed,  or  its  value  impaired,  to  the  injury 
of  plaintiflF. 

7.  On  the  final  judgment  or  order  of  any  Court  in  the  Territory, 
when  the  defendant  having  no  property  subject  to  execution,  or 
not  sufficient  to  satisfy  the  judgment,  has  money  which  he 
ought  to  apply  in  payment  upon  such  judgment,  which  he  re- 
fuses to  apply,  with  intent  to  defraud  plaintiff;  or  when  he 
refuHCS  to  comply  with  the  legal  order  of  the  Court,  with  intent 
to  defraud  the  plaintiff. 

The  Court  or  judge  making  the  order  shall  first  be  satisfied 
by  affidavit  of  the  party,  his  agent  or  attorney,  and  other  proof 
in  writing,  that  one  or  more  of  the  above  causes  exist.  Before 
the  order  of  arrest  issues,  the  plaintiff,  or  some  one  in  his  be- 
half, shall  file  a  bond  with  the  clerk  in  such  amount  as  the 
Court  or  judge  may  have  fixed  in  the  order,  with  sureties  to  the 
satisfaction  of  the  clerk,  conditioned  to  pay  to  the  defendant 
all  damages  he  shall  suffer  and  all  expenses  he  shall  incur  by 
reason  of  such  arrest  and  imprisonment,  if  the  order  be  vacated, 
or  if  the  plaintiff  fail  to  recover  in  his  action.  The  defendant 
may,  on  motion,  apply  to  the  Court  to  vacate  the  order  of  arrest 
on  the  ground  of  iasvifficiency  of  the  proof,  or  he  may  show 
that  the  facts  alleged  ai*e  untrue,  or  he  may  give  bail. 

The  grounds  for  issuing  a  warrant  of  arrest  by  a  justice  of 
the  peace  are  the  same  as  above. 


I 


' 


260 


WASHINGTON. 


[Part  {). 


CHAPTER  VIII. 


JUDGMENTS  AND  JUDGMENT  LIENS. 

In  addition  to  judgments  of  non-suit  and  judgments  upon 
the  merits,  either  on  trial  by  jury  or  by  the  Court,  the  plaintiff 
may  have  judgment  by  failure  of  the  defendant  to  appear  and 
answer,  or  upon  the  confession  of  judgment  by  defendant.  A  judg- 
ment in  the  District  Court  is  a  direct  lien  on  the  real  estate  of 
the  defendant  in  the  county  where  the  judgment  is  rendered  for 
twenty  days  after  its  rendition.  The  plaintiff,  to  continue  the 
lien,  must,  at  the  expiration  of  said  twenty  days,  file  a  transcript 
of  the  judgment  in  the  office  of  the  county  auditor  of  any  county 
where  the  real  estate  is  situated,  which  lien  shall  continue  for 
five  years  from  the  date  of  the  judgment. 

To  make  a  judgment  in  Justices'  Courts  a  lien  on  real  estate, 
the  plaintiff  must  file  a  transcript  of  such  judgment  in  the  office 
of  the  clerk  of  the  District  Court,  and  file  such  transcript,  certi- 
fied by  the  clerkj  in  the  office  of  the  county  auditor  of  the  county 
where  the  real  estate  is  situated. 


CHAPTER  IX. 


EXECUTIOI'3.    EXEMPTIONS,    SALES, 

TIONS. 


AND    REDEMP- 


The  plaintiff  may  have  execution  on  a  judgment  at  any  time 
within  five  years  after  its  rendition;  if  the  period  of  five  years 
shall  have  elapsed  without  an  execution  having  been  issued, 
none  shall  issue  unless  the  creditor  or  his  assignee  shall  file  a 
motion  with  the  clerk  of  the  Court  to  issue  an  execution,  verified 
in  like  manner  as  a  complaint,  and  shall  cause  notice  of  such 
motion  to  be  served  on  the  judgment  debtor  in  like  manner  and 


Chap.  9]. 


WASHINGTON. 


261 


-with  like  effect  as  a  summons.  The  motion  shall  be  tried  as  any 
other  action.  Upon  hearing  the  motion,  the  Court  may  order 
that  judgment  be  entered  and  docketed  as  other  judgments. 
Executions  require  the  sheriff  to  exhaust  the  personal  property  of 
the  defendant,  not  exempt  from  execution,  before  levying  on  real 
estate.  They  can  be  issued  to  any  sheriff  in  the  Territory,  when 
the  defendant  has  property,  by  plaintiff,  his  agent  or  attorney, 
making  an  affidavit  that  the  defendant  has  not  sufficient  property 
in  the  county  where  the  execution  is  issued,  to  satisfy  the  judg- 
ment, but  that  he  has  property  subject  to  execution  in  such 
other  county.  Execution  may  be  stayed  by  defendant  on  giving 
a  bond  to  the  opposite  party  in  double  the  amount  of  the  judg- 
ment and  costs,  with  surety  to  the  satisfaction  of  the  clerk,  con- 
ditioned to  pay  said  judgment,  interest,  costs,  and  increased 
costs,  at  the  expiration  of  the  ptriod  of  the  stay,  which  is  as 
follows  :  In  the  Supreme  Court,  on  all  sums  under  $500,  thirty 
days ;  on  all  sums  over  $500  and  under  $1500,  sixty  days ;  on  all 
«ums  over  $1500,  ninety  days.  In  the  District  Court,  on  all 
sums  under  $300,  two  months  ;  on  all  sums  over  $300  and  under 
$1000,  five  months ;  on  all  sums  over  $1000,  six  months.  In 
-Justices'  Courts,  on  any  sum  not  exceeding  twenty-five  dollars, 
•one  month ;  more  than  twenty-five  dollars,  two  months. 


Exemptions. 

All  property,  real  and  personal,  belonging  to  a  married  woman 
at  the  time  of  her  marriage,  and  all  which  she  may  subsequently 
Acquire  in  her  own  right,  and  all  the  pei'sonal  earnings,  and  all 
the  issues,  rents,  and  profits  of  such  real  estate,  shall  not  be 
liable  to  attachment  or  execution  upon  any  liability  or  judgment 
against  the  husband,  so  long  as  she  or  any  minor  heir  of  her 
body  shall  be  living.  Every  householder  being  the  head  of  a 
family  is  entitled,  as  exempt  from  attachment  and  execution,  to 
a  homestead  not  exceeding  in  value  the  sum  of  one  thousand 
dollars,  while  occupied  as  such  by  the  owner  thereof,  or  his  or 
her  family.  The  following  property  shall  also  be  exempt  from 
exc'jution  :  All  wearing  apparol,  private  libraries,  family  pictures, 
and  keepsakes ;  to  each  householder  one  bed  and  bedding,  and 
on«  additional  bed  and  bedding  for  every  two  members  of  the 


262 


WASHINGTON. 


[Part  9. 


K'l' 


i 


family,  and  other  household  goods,  utensils,  any  furniture  not 
exceeding  $150,  coin,  in  value ;  two  cows  and  calves,  five  swiue, 
two  stands  of  bees,  twenty-five  domestic  fowls,  and  provisions 
and  fuel  for  the  comfortable  maintenance  of  such  householder 
and  family  for  six  months.  To  a  farmer,  one  span  of  horses 
and  harness,  or  two  yoke  of  oxen,  with  yokes  and  chains,  and 
one  wagon;  also  farming  utensils,  actually  used  about  the 
farm,  not  exceeding  in  value  $200  in  coin.  To  a  mechanic, 
the  tools  of  his  trade,  also  material  not  exceeding  in  value 
$500  coin.  To  a  physician,  his  library  not  exceeding  in 
value  $500  coin;  also  one  horse  and  buggy,  the  instru- 
ments used  in  his  practice,  and  medicines  not  exceeding  in  value 
$200  coin.  To  attorneys,  clergymen,  and  other  professional 
men,  their  libraries,  not  exceeding  $500  coin  value,  and  office 
furniture,  fuel,  and  stationery,  not  exceeding  $200  coin  value. 
All  firearms  kept  for  the  use  of  any  person  or  family.  To  all 
persons,  a  canoe,  skiff,  or  small  boat,  with  its  oars,  sails  and 
rigging,  not  exceeding  $50  coin.  To  a  person  engaged  in  light- 
ering for  his  support,  one  or  more  lighters,  barges,  or  scows, 
and  a  small  boat  with  oars,  sails  and  rigging,  not  exceeding  in 
the  aggregate  $250  coin  value.  To  a  teamster  or  drayman,  his 
team:  the  word  team  meaning  a  span  of  horses,  harness,  and 
one  wagon  or  dray.  To  a  person  engaged  in  logging  for  the 
support  of  himself  and  family,  three  yoke  of  work  cattle,  with 
their  yokes,  and  axes,  chains,  implements  for  the  business  and 
camp  equipments,  not  exceeding  $300  coin  in  value;  a  sufficient 
quantify  of  hay,  grain  or  feed  to  keep  the  animals  herein  ex- 
empt for  six  months.  No  property  shall  be  exempt  from,  an 
execution  issued  on  a  judgment  for  the  price  of  any  part  of  the 
price  thereof. 

Sales. 

Personal  property  is  sold  by  the  sheriff  upon  ten  days'  notice 
of  the  time  and  place  of  such  sale,  posted  in  three  public  places 
of  the  county:  real  estate,  by  posting  similar  notices,  par- 
ticularly describing  the  property,  for  four  weeks  in  three  public 
places  of  the  county  where  the  property  is  to  be  sold,  and  pub- 
lishing a  copy  thereof  once  a  week,  for  the  same  period,  in  a 
newspaper  of  the  county,  if  there  be  one,  if  not,   then  in  a 


Chap.  9.] 


WASHINGTON. 


263 


. 


newspaper  published  nearest  to  the  place  of  sale.  All  sales  of 
property  upon  execution  shall  be  by  auction.  Sales  of  personal 
property  shall  be  in  view  of  the  property,  and  of  real  estate,  at 
the  Court-house  door. 

Redemption. 

Sales  of  real  estate  are  confirmed  at  the  next  term  of  the 
District  Court,  and  the  defendant,  or  his  successor  in  interest, 
or  any  person  having  a  lien  thereon,  may  redeem  such  real 
estate  within  six  months  after  confirmation,  by  paying  the 
amount,  with  two  per  cent,  interest  per  month. 


'     CHAPTER  X. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 

The  plaintiff  in  proceedings  supplemtary  to  execution  may, 
upon  a  proper  showing  to  the  Court  or  judge,  have  an  order  re- 
quiring defendant  to  aj)pear  and  answer  as  to  any  property 
which  he  may  have  subject  to  execution,  and  which  ought  to  be 
applied  on  the  judgment;  or  if  it  appears  there  is  danger  of  the 
defendant  absconding,  the  order  may  require  his  arrest,  and 
upon  being  brought  before  the  judge  he  may  be  ordered  to  enter 
into  bond,  with  surety,  that  he  will  appear  from  time  to  time 
during  such  proceedings,  and  will  not  in  the  meantime  dispose 
of  any  of  his  property  subject  to  execution.  Any  person  indebted 
to  the  defendant  iu  a  sum  exceeding  fifty  dollars,  may  be  re- 
quired to  appear  and  answer  concerning  the  same. 


i 


1 1 


264 


WASHINGTON. 


[Part  9. 


CHAPTER  XL 


SECURITY  FOR  COSTS. 


tl; 


When  the  plaintiff  resides  out  of  the  district  or  county,  or  is 
a  foreign  corporation,  security  for  costs  may  be  required  by  the 
defendant;  when  required,  all  proceedings  in  the  action  shall  be 
stayed  until  a  bond,  executed  by  two  or  more  persons,  be  filed 
with  the  clerk,  conditioned  that  they  will  pay  such  costs  and 
charges  as  may  be  awarded  against  plaintiff,  not  exceeding  the 
sum  of  $200. 


CHAPTER  XII. 


APPEALS  AND  WRITS  OF  ERROR. 


May  be  taken  from  the  District  Courts  to  the  Supreme  Court  of 
the  Territory  within  six  months  from  the  date  of  the  order, 
judgment  or  decree  appealed  from,  and  not  afterwards.  Ta 
stay  proceedings  in  the  Court  below,  the  appellant  or  plain- 
tiff in  error  must  file  a  bond  with  sureties  to  the  satisfaction  of 
the  clerk.  Appeals  from  the  Probate  Court  to  the  District 
Court  must  be  taken  within  sixty  days  from  the  rendition  of  the 
decision  or  judgment,  and  from  Justices  of  the  Peace  to  the 
District  Court,  within  twenty  days  from  the  date  of  the  judg- 
ment. The  party  appealing  shall  execute  and  file  with  the 
justice  a  bond  with  one  or  more  sureties  in  the  sum  of  |100,  to 
the  effect  that  the  appellant  will  pay  all  costs  ;  or  if  a  stay  of 
proceedings  be  claimed,  a  bond  with  two  or  more  sureties  in  a 
sum  equal  to  twice  the  amount  of  the  judgment. 


Chap.  13.] 


WASHINGTON. 


265 


CHAPTER  XIII. 


ESTATES  OF  DECEASED  PERSONS. 


Claims  against  decedents'  estates  must  be  filod  within  one  yoar 
from  the  publication  of  notice  tocreditorH.  The  Court  may ,  how- 
ever, in  its  discretion,  order  a  shorter  time  in  any  particular  case, 
but  not  less  than  six  months  frotu  tho  date  of  notice.  To  entitle  a 
claim  to  be  filed,  it  must  be  supported  by  the  afii davit  of  the  claim- 
ant that  the  amount  is  justly  due,  that  no  payments  have  been 
made  thereon,  and  that  there  are  no  offsets  to  the  same  to  the 
knowledge  of  the  claimant.  The  oath  may  bo  taken  before  any 
officer  authorized  to  administer  oaths,  and  in  a  neighboring 
State  or  Territory,  the  oath,  if  not  adniinistereu  by  a  commis- 
sioner for  the  Territory,  must  be  i)roperly  authentic  ated,  the 
certificate  stating  that  such  person  is  authorized  to  administer 
oaths,  and  that  his  signature  is  genuine,  with  the  seal  of  u  Court 
of  record  to  such  certificate.  The  claim  being  thus  proved, 
must  be  presented  to  the  administrator  for  his  allowance;  if  he 
allow  it,  it  is  presented  to  the  probate  judge  for  his  allowance, 
when,  if  allowed  by  him,  the  samo  is  filed.  If  either  the  admin- 
istrator or  probate  judge  reject  it,  the  party  has  three  mouths 
within  which  to  bring  suit  on  it.  Estates  must  be  settled  within 
one  year,  unless  further  time  be  granted  by  the  Court. 

Husband  or  wife  can  only  dispose  of  by  will,  their  separate 
property.  On  the  death  of  either,  the  whole  of  the  community 
property,  subject  to  the  community  debt,  goes  to  the  survivor. 


2G6 


WASHIMOTON. 


[Part  9. 


CHAPTET.  XIV. 


HOMESTEADS. 


I 
i 


See  Exemptions.  A  homestead  may  consist  of  a  house  and 
lot,  or  lots,  in  any  city,  or  of  a  farm  of  any  number  of  acres,  so 
that  their  value  does  not  exceed  $1000.  To  entitle  a  peraon  to 
a  homestead,  he  or  she  shall  cause  the  word  "  homestead"  to 
be  entered  of  record  in  the  margin  of  his  or  her  recorded  title 
to  the  same,  and  the  date  of  such  entry. 


CHAPTER  XV. 
DEPOSITIONS 


Of  witnesses  residing  in  the  Territory  may  be  taken,  when  the 
witness  resides  out  of  the  sub-district,  and  more  than  twenty 
miles  from  the  place  of  trial ;  or  when  the  witness  is  about  to 
leave  the  district,  and  go  more  than  twenty  miles  from  the  place 
of  trial,  and  there  is  a  probability  that  he  will  continue  absent 
when  the  testimony  is  required ;  or  when  he  is  sick,  infirm,  or 
aged,  so  as  to  make  it  probable  he  will  not  be  able  to  attend  the 
trial  before  any  judge  of  the  District  Court,  justice  of  the  peace, 
clerk  of  the  Supreme  or  District  Courts,  mayor  of  a  city  or 
notary  public,  upon  serving  on  the  adverse  party,  or  his  attorney, 
three  days'  notice  of  the  time  and  place  of  examination,  and  one 
day  (Sundays  excepted),  for  every  ten  miles  of  the  distanct^  of 
the  place  of  examination  from  the  residence  of  the  person  to 
whom  notice  is  given.  The  deposition  shall  be  written  by  the 
officer  taking  the  same,  or  by  the  witness,  or  by  some  disinter- 
ested person  in  the  presence  and  under  the  direction  of  such 
officer.     When  completed  it  shall  be  carefully  read  to  or  by  the 


Chap.  16.] 


WASHINGTON. 


987 


witness,  corrected  if  desired,  subscribed  by  him,  and  certified 
by  the  officer  substantially  as  follows  : 


Territory  of  Washington, 
Cobisry  OF 


88. 


I,  A  B,  Justice  of  the  Peace,  in  and  for  said  county,  (or 
judge's  clerk,  etc.,  as  the  case  may  be),  do  hereby  certify,  that 
the  above  deposition  wuh  taken  before  me  and  reduced  to  writ- 
ing by  myself  (or  witness,  as  the  case  may  be),  at in  said 

county,  on  the day  of 18 — at o'clock,  in  pursuance 

of  notice  hereto  annexed  ;  that  the  above  named  witness  before 
examination,  was  sworn  (or  affirmed),  to  testify  the  truth,  tlie 
whole  truth,  and  nothing  but  the  truth,  and  that  the  said  depo- 
sition was  carefully  read  to,  (or  by)  said  witness,  and  then  sub- 
scribed by  him.  A.  B,  Justice  of  the  Peace. 

Dated  at the day  of 18 — . 

The  deposition  shall  be  enclosed  in  a  sealed  envelope  by  the 
officer  taking  the  same,  and  directed  to  the  clerk  of  the  court, 
arbitrators,  referee  or  justice  of  the  i)eace  before  whom  the 
action  is  pending,  and  either  delivered  to  the  clerk  of  the  court 
or  other  person,  or  transmitted  through  the  mails,  or  by  some 
private  opportunity. 

Depositions  may  be  taken  out  of  the  Territory,  by  a  judge, 
justice  or  chanc(?llor,  or  clerk  of  any  court  of  record,  a  justice 
of  the  peace,  notai'y  public,  mayor  or  chief  magistrate  of  any 
city  or  town,  or  any  person  authorized  In  special  commission 
from  any  court  of  the  Territory ;  any  court  of  record  or  the 
judge  thereof  ie  authorized  to  grant  a  connnission  to  take  depo- 
sitions in  or  ont  of  the  Territory  ;  prior  to  the  taking  of  any 
deposition,  unlefcs  taken  under  a  special  commission,  a  written 
or  printed  noti'-e  specifying  the  action  or  proceeding,  the 
name  of  the  court  or  tribunal  in  which  it  is  to  be  used, 
and  the  time  and  place  ®f  taking  the  same  shall  be  served 
on  the  adverse  party,  his  agent,  or  attorney,  of  record  or  left 
at  his  usual  place  of  abode;  said  notice  shall  be  served  so 
as  to  allow  the  adverse  party  sufficient  time  l)y  the  usual  route  of 
travel  to  attend,  and  one  da}  for  prei^aration,  exclusive  of  Sun- 
day and  the  day  of  service,  and  the  examination  may,  if  so  stated 


I  [ 


208 


WA8HINOTON. 


[Part  J . 


in  the  notice,  be  adjourned  from  day  to  day.  If  the  party, 
against  whom  the  deposition  is  to  be  read,  is  absent  from  or  a 
non-resident  of  the  Territory,  and  has  no  agent  or  attorney  of 
record  therein,  he  may  be  notified  of  the  taking  the  deposition 
by  publication  for  three  consecutive  weeks  in  some  newspaper, 
printed  in  the  county  where  the  action  is  ponding;  and  if  none 
be  print/Od  there,  in  some  newspaper  printed  in  the  Territory  of 
general  circulation  in  that  county.  The  publication  must  con- 
tain all  that  is  required  in  the  written  or  printed  notice. 
Tie  deposition  should  be  written  and  certified  as  above. 


CHArTER  XVI. 


JUDICIAL  RECORDS  01*'  OTHER  STATES,  HOW  PROVED. 

The  records  and  proceedings  of  any  Court  of  the  United 
States,  or  any  State  or  Territory,  shall  be  admissible  in  evidence 
in  all  cases  in  Washington  Territory,  when  authenticated  by  the 
attestation  of  the  dork,  prothomifcary,  or  other  officer  having 
charge  of  the  records  of  such  Court,  with  the  seal  of  such  Court 
annexed. 


CHAPTER  XVII. 

ACKNOWLEDGMENTS. 

All  deeds  affecting  the  title  to  real  estate,  or  of  any  interest 
therein,  and  ail  contracts  creating  or  evidencing  any  encum- 
brance on  real  estate,  shall  be  by  deed.  All  deeds  must  be  ac- 
knowledged l)efore  one  of  the  following  officers,  if  made  in  the 
Territory:  a  judge  of  the  Supreme  Court,  a  judge  of  the  Probate 
Court,  a  justice  of  the  peace,  a  county  auditor,  a  clerk  of  the 
District  or  Supreme  Court,  or  a  notary  public,  dub'  ;ualihed. 


-,!% 


Chap.  17.  J 


WA8HINOTON. 


2(;9 


If  made  out  of  the  TeiTitorj',  but  in  the  United  States,  they 
may  be  acknowledged  before  any  person  authorized  to  take  ac- 
knowledgments of  deeds  l)y  the  lav/H  of  the  State  or  Territory 
wherein  the  acknowledgment  is  taken,  or  before  any  commia- 
sioner  appointed  by  the  Gov  rnor  of  WaHliington  Territory  for 
such  purpoHe.  UnlesH  such  tu.h  aowU-dgment  be  taken  before  such 
commiHsioner  or  by  the  clerk  of  a  ('ourt  of  record  of  said  State  or 
Teri'itory,  or  by  a  notary  pul)li(;  or  oth^jr  officer  laving  a  seal  of 
office,  then  Mvich  deed  hIuiU  have  attached  thereto ut  ♦Ttiti'-ati.'of  the 
clerk  of  a  Court  jf  record  of  the  county  or  district  within  which  the 
acknowledgment  was  taken,  under  the  seal  of  his  office,  that 
the  person  whose  name  is  subscribed  to  the  cei-titicate  of  ac- 
knowledgment was,  at  the  date  thereof,  sudi  officer  as  he  is 
therein  represented  to  be;  that  lie  is  autliorized  by  law  to  take 
acknowlodgments  of  deeds;  and  that  he  believes  tlie  signature 
of  the  person  subscribeil  thereto  to  be  genuine.  If  made  in  a 
foreign  countiy,  out  of  the  United  States,  they  shall  b«  acknow- 
ledged or  proved  by  two  witnesses  beiore  any  minister  plenipo- 
tentiary, c/iarcfe  (V affaires ,  consul,  "  general  consul,"  vice-(!on- 
sul,  or  couuuercial  agent  appointed  by  tlie  government  <ff  the 
United  States  to  any  foreign  countiy,  or  the  proper  officer  of 
any  Court  of  such  country,  or  the  mayor  or  other  chief  iriagis- 
trate  of  any  city,  town,  or  corporation  therein.  Such  officer 
shall  make  and  sign  officiall  •  a  certificate  of  a<;kiiowledgn»ent,  or 
of  the  proof  l)y  two  witnesses,  as  the  case  may  be,  which  shall 
be  annexed  to  the  deed. 

There  are  no  particular  r6([ni8ite8  of  an  ackn<»wledgment,  ex- 
cept in  case  of  a  married  woman.  She  shall  not  be  bound  by 
any  deed  affecting  her  own  real  estat*'  or  any  intt»rest  in  real 
estate,  unless  .she  shall  be  joined  in  the  (ionveyance  by  her  hus- 
band, and  shall,  upon  an  examination  by  the  officer  inking  the 
acknowledgment,  acknowledge  that  she  did  voluntarily,  of  her 
own  free  will,  exei'uto  the  deed 

In  case  the  owner  of  a  homestead  voluntarily  jf  n:--igeH  the 
same,  said  mortgage  shall  not  be  valid   agMinut    '  ....  unless 

she   shall   freely  and   voluntarily,  separate  .,    •♦from   her 

husband,  sign  and  acknowledge  it,  and  the  f/ffi#5«»r  inking  the  ac- 
knowledgment shall  fully  apprise  her  of  her  h|^t8,  tnd  of  the 
effect  of  signing  such  mortgage. 


270 


WASHINGTON. 


[Part  9. 


CHAPTER  XVIII. 


LIMITED  PARTNERSHIPS. 


There  is  no  law  of  limited  partnerships  in  this  Territory.   The 
liability  of  partners  is  unrestricted. 


CHATER  XIX. 
MARRIED  WOMEN. 

Oannot  become  sole  traders  in  this  Territory.  All  property 
owned  by  the  wife  at  the  time  of  her  marriage,  and  that  ac- 
quired afterwards  by  gift,  bequest,  devise  or  descent,  is  her 
separate  propertj ,  but  is  liable  for  her  husband's  debts,  unless 
she  has  a  recorded  inventory  of  the  same  in  the  office  of  the 
county  auditor  of  the  county  where  the  property  is  situated. 
The  wife  can  make  no  contracl  in  her  own  right,  except  in  par- 
ticular cases  affecting  her  separate  property. 


CHAPTER  XX. 


CORPORATIONS. 


Each  and  every  stocklujldtT  shall  l)e  personally  lial)lc  to  the 
(creditors  of  the  company  to  the  amount  of  what  remains  unpaid 
on  hh  nxibHcriptiun  to  the  capital  stock,  and  not  otherwise. 


BH 


Chap.  21.] 


WASHINGTON. 


271 


CHAPTER  XXI. 
CHATTEL  MORTGAGES 

May  be  made  upon  locomotives,  engines,  and  the  other  rolling 
stock  of  a  railroad;  steam  machinery  and  machinery  used  by 
machinists,  foundry  men,  and  mechanics;  steamboat  engines  and 
boilers;  mining  machinery;  printing  presses  and  material;  pro- 
fessional libraries;  instruments  of  a  physician,  surgeon,  or 
dentist;  upholstery  and  furniture  used  in  hotels  or  boarding- 
houses,  when  mortgaged  to  secure  tlie  purchase  money  of  the 
articles  mortgaged;  growing  crops,  vessels  of  more  than  five 
tons  burden,  and  all  other  kinds  of  personal  property.  The 
mortgage  must  be  accompanied  by  the  affidavit  of  all  the  parties 
thereto  that  it  is  made  in  good  faith,  and  without  any  design  to 
hinder,  delay,  or  defraud  creditorn.  Itmust  be  acknowledged  or 
proved,  certified,  and  lecorded  in  the  same  manner  as  deeds  to 
real  estate.  It  must  be  recorded  in  the  oflSce  of  the  countv  au- 
ditor where  the  mortgagor  resides,  and  also  of  the  county  in 
which  the  property  mortgaged  is  situated,  or  to  which  it  may  be 
removed,  and  must  be  recorded  in  books  kept  for  chattel  mort- 
gages exclusively.  ,  •    ;„ 


CHAPTER  XXII. 


INTEREST. 


The  legal  rate  of  interest  is  ten  per  cent,  per  annum,  in  the 
absence  of  any  contract  in  writing,  fixing  a  different  rate.  Par- 
ties may  contract  in  writing  for  any  rate  of  interest  that  they 
may  agree  upon. 


' 


272 


WAHHINttTON. 


[Part  ». 


CHAPTER  XXIII. 


INSOLVENT  LAW. 


Every  insolvent  debtor  may  be  discharged  from  his  debts  on 
executing  an  assignment  of  all  his  property,  real,  personal,  or 
mixed  for  the  benefit  of  all  his  creditors,  in  compliance  with  the 
provisions  of  the  Act  of  the  Legislative  Assembly,  approved 
January  31,  1867,  provided  said  assignment  "  be  made  bona  fide 
and  without  fraud." 

The  District  Court  has  original  jurisdiction  in  matters  of  in- 
solvency. The  insolvent  debtor  petitions  the  judge  having 
original  jurisdiction  within  his  place  of  domicile  or  usual  resi- 
dence, briefly  stating  the  causes  which  compel  him  to  surrender 
his  property  to  his  creditors,  and  prays  to  make  a  ces- 
sion of  his  estate  and  be  discharged  from  his  debts;  he 
shall  annex  to  said  petition  a  schedule  containing  a  list 
of  the  losses  he  may  have  sustained,  giving  the  names 
of  his  (^editors,  if  known,  amount  due  to  each  creditor, 
the  cause  and  nature  of  such  indebtedness  and  when  it 
accrued,  and  a  statement  of  any  existing'  judgment,  mortgage, 
collateral  or  other  securities  for  the  payment  of  any  such  debt ; 
it  shall  contain  a  full,  complete  and  perfect  inventoiy  of  all  his 
property,  real,  personal  and  mixed ;  of  all  choses  in  action  ; 
debts  due  or  to  become  due,  and  all  moneys  on  hand,  and  a  full 
statement  of  all  incumbrances  on  his  pro])erty.  He  shall  esti- 
mate and  set  forth  in  said  schedule  his  i)roperty  at  its  cash  vahie. 

He  shall  subscribe  and  swee,r  to  the  schedule.  (The  form  of 
the  oath  is  given  in  the  statute,  and  it  is  exceedingly  strong  and 
forcible. ) 

The  judge  then  makes  an  order  recjuiring  all  the  creditors  to 
show  causo  why  an  assignment  should  not  be  made,  and  the  in- 
solvent diccharged  from  his  debts. 

The  homestead 'if  any,  and  property  exemjit  fvim  execution 
art  fluded  in  the  schedule,  but  it  is  the  duty  of  tin  i^dge  to 
set  it  ajiart  for  the  use  and  benefit  of  the  insolvent.         le  insol- 


Chap.  23.1 


WASHINGTON. 


273 


vent  shall  on  or  before  the  day  appointed  for  the  meeting  of  his 
creditors,  deliver  to  the  court  all  his  books  of  account,  and 
vouchers,  notes,  bonds,  bills,  securities  or  other  evidences  of 
debt  bearing  on  the  property  surrendered,  and  thej'  shall  be 
filed  and  ultimately  delivered  to  the  assignees  who  may  be  a\)- 
pointed. 

A  notice  is  published  by  the  clerk  of  the  Court  directing  the 
creditors  to  appear  before  the  judge  at  chambers  or  in  open 
Court,  to  show  cause  why  the  petition  should  not  be  granted; 
meantime  all  proceedings  against  the  insolvent  are  stayed,  which 
does  not,  however,  prevent  the  appointment  of  a  receiver  by  the 
judge  to  take  possession  of  all  the  insolveut's  property;  providtd, 
one  or  more  of  his  creditors  shall  show  cause  therefor  by  pre- 
liminary affidavit,  and  satisfactory  proof  of  the  facts  on  which  it 
is  founded. 

At  the  creditors  meeting  tLey  first  certify  "  on  oath  that 
their  respective  claims  aie  legitimate  tmd  true,"  and  then  ap- 
point one  or  more  assignees,  not  exceeding  three.  In  appoint- 
ing assignees  "the  opinion  of  the  majority  of  said  creditors,  in 
sums  or  in  claims,  shall  prevail,"  and  any  creditor  may  be  rep- 
resented by  his  "duly  authorized  agent  or  attorney." 

"When  the  assignee  or  assignees  have  been  appointed  and  the 
surrender  of  the  property  accepted  of,  the  assignees  tile  in  the 
clerk's  office  "  a  certified  statement  of  the  deliberations  of  said 
creditors  on  the  appointment  of  said  assignees,"  and  they  give 
bond  in  such  sum  as  tho  majority  of  the  creditors  may  have 
detenuined;  or  if  they  have  not  fixed  on  any  amount,  the  judi,^ 
shall  determine  it. 

The  insolvent's  property  is  sold  at  public  auction  by  the  as- 
signees, on  twenty  days'  notice  by  publication  in  a  newspaper  of 
the  (lounty,  or  if  none,  in  the  one  nearest  thereto. 

The  assignees  (if  more  than  one)  shall  deposit  all  funds  "he- 
longing  to  the  failure  "  in  their  joint  namcis,  and  they  shall  never 
be  used  till  (listril)uted  aeeovdiug  to  tlie  directions  of  the  Court; 
thoy  nva.V  sue  or  be  sued  in  respect  to  tho  insolvent  or  his  cred- 
itoiH,  and  all  suits  against  the  insolvent  shall  be  transferred  to 
the  Court  hnving  jnrisdietiou  of  the  insolveney. 

The  asHignecH  shall  declare  dividends  when  the^y  have  funils. 


&, 

£ 


274 


WASHINGTON. 


[Part  9. 


I 


and  any  creditor  may  make  a  motion,  at  any  time,  to  know  if 
they  have  funds  in  their  hands,  and  they  shall,  if  they  have,  be 
compelled  to  present  their  accounts  and  make  distribution;  or, 
if  they  neglect  to  do  so,  shall  be  removed  by  the  judge  or 
Court,  and  others  may  be  appointed  by  said  judge  or  Court. 
In  that  event  the  former  assignees  forfeit  all  claim  to  any 
commission  and  pay  twenty  per  cent,  in  addition  to  the 
amount  of  funds  in  their  hands,  as  a  penalt}  . 

The  assignees  collectively  receive  ten  per  cent,  on  a  sum  not 
exceeding  $10,00U ;  eight  per  cent,  on  sums  above  $1U,00,  and 
not  exceeding  $30,000 ;  six  per  cent,  on  sums  above  $30,000, 
and  not  exceeding  $60,000  ;  and  four  per  cent,  on  sums  exceed- 
ing $60,000. 

If  no  creditors  attend  on  the  day  appointed  for  the  meeting, 
the  Judge  may  authorize  the  sheriff  to  receive  the  surrender  of 
the  property  and  perform  the  functions  of  assignee. 

If  after  the  appointment  of  assignees,  any  one  of  the  credi- 
tors deems  it  necessary'  to  oppose  the  assignment  on  account  of 
fraud  of  the  insolvent,  or  the  assignment  not  having  been  legally 
made,  he  shall  within  ten  days  after  the  appointment,  lay  before 
the  judge  or  court  his  written  opposition,  specifying  the  factson 
which  1^  is  based,  and  in  case  of  fraud,  a  trial  is  had  before  a 
jury  of  rix  men,  at  which  the  objecting  (ireditor  •*  shall  have  the 
right  to  interrogate  the  insolvent  debtor  on  oath,  and  put  to 
him  such  written  questions  as  to  the  state  of  his  affairs,  and  the 
several  transactions  in  which  he  may  have  been  engaged  anterior 
to  his  failure,  as  he  shall  think  proper,  and  the  insolvent  shall 
answer  in  writing  the  said  intei rogatories  in  a  pertinent  and 
distinct  manner,  and  every  equivocal  answer  on  his  part  shall  be 
construed  against  him."  If  the  jury  find  the  insolvent  guilty 
of  fraud,  he  shall  forever  be  debarred  from  the  benefit  of  the 
TeiTitohal  ins<  Iveut  laws. 

All  persons  shall  be  considered  as  "  fraudulent  bttukYui)ts" 
who  shall  be  convicted  of  having  concealed  their  property  with 
the  intention  to  keep  it  from  their  creditors;  or  of  having  con- 
cealed or  altered  their  books  or  papers  with  like  intention;  or  of 
having  passed  sham  deeds  with  intent  to  deprive  their  creilitors 
of  the  whole  or  any  part  of  their  property;  or  of  intentionally 


Chap.  23]. 


WA8HINOTON. 


275 


omitting  any  of  his  property  from  his  schedule;  or  of  having 
purloined  his  books  or  any  of  them;  or  of  having  altered, 
changed,  or  made  them  anew  with  intent  to  defraud  his  cred- 
itors; or  of  having  fraudulently  alienated,  mortgaged,  or 
pledged  any  of  his  property;  or  of  having  "  committed  any 
other  kind  of  fraud  to  the  prejudice  of  hia  creditors." 

The  insolvent  shall  be  debarred  from  the  privileges  of  the  act, 
if  he  shall  be  convicted  of  having  at  any  time  within  throe 
months  preceding  his  failure,  "fraudulently  sold,  engaged  or 
mortgaged  any  of  his  goods  or  eflfects,  or  of  having  otherwise 
assigned,  transferred,  or  disposed  of  the  same,  or  any  part 
thereof,  or  confessed  judgment  in  order  to  give  a  preference  to 
one  or  more  of  his  ci'editors  over  others." 

All  debtors  accountable  for  public  funds,  all  "  unfaithful  de- 
positaries," all  who  refuse  or  neglect  to  pay  all  funds  received 
by  them  as  bankers,  brokers,  commission  merchants,  or  in  any 
fiduciary  capacity  are  debarred  the  benefits  of  the  act. 

If,  after  the  insolvent  has  had  the  benefit  of  the  act,  it  be 
made  thereafter  to  appear  that  he  has  concealed  any  part  of  his 
property  or  estate  or  given  a  false  schedule,  or  committed  any 
fraud  under  the  provisions  of  the  act,  he  forfeits  all  its  benefits 
and  cannot  "avail  himself  of  any  of  its  provisions  in  bar  to  any 
claim  that  may  be  instituted  against  him." 

After  the  surrender  of  the  property  of  the  insolvent  it  ve.sts  in 
the  assignees. 

The  judge  shall  appoint  an  attorney  to  represent  all  creditors 
residing  out  of  the  Territory  who  have  no  attorney  to  represent 
them,  but  the  mass  of  the  creditors  i)ay  said  attorne;-  nothing; 
his  fees  are  levied  on  the  amount  recovered  ft)r  such  non-resi- 
dent creditors,  at  the  rate  of  ten  i)er  cent.,  and  in  no  case  shall 
said  fees  exceed  $350. 

The  insolvent  must  surrender  to  the  assignees  all  the  jjroperty 
contained  in  his  scdiedulo  ;  if  not  the  judge  shall  order  the 
sherirt'  to  take  the  })roperty  and  deliver  it  to  the  assignees,  or 
may  imprison  the  insolvent  till  he  surrenders  it. 

The  assignees  shall  make  out  and  verify  an  account  of  their 
disbursements,  which  if  api)roved,  the  judge  sliall  certify,  and 
allow  the  amount  thereof  out  of  the  insolvent's  propex-ty. 


276 


WASHUiOTOM. 


[Part  9^ 


A  member  of  a  firm  may  make  an  assignn^ant  of  copartner- 
ship property  with  the  consent  in  writing  of  the  other  members ; 
when  aU  join  they  may  include  in  the  assignment  all  their 
individual  as  well  aspartnership  property,  and  may  le discharged 
from  both  classes  of  debts  in  the  same  proceeding,  but  partner- 
ship property  shall  be  applied  to  partnership  debts,  and  indi- 
vidual property  to  individual  debts. 


PART  X. 


ARIZONA  TERRITORY. 


CHAFfER  I. 
COURTS  AND  THEIR  JURISDICTION. 

The  following  are  the  Courts  of  justice  for  the  Territory: 

1.  The  Supreme  Court.  2.  The  District  Courts.  3.  The 
Probate  Courts.     4.  The  Justices'  Courts. 

The  Supreme  Court  has  appellate  jurisdiction  in  all  cases 
wherein  the  legality  of  any  tax,  toll,  impost,  or  municipal  fine  is 
in  question.     It  also  has  jurisdiction  to  review  upon  appeal — 

First.  A  judgment  in  action  or  proceeding  commenced  in  a 
District  Court,  or  brought  into  that  Court  from  another  Court, 
where  the  matter  in  dispute  exceeds  one  hundred  dollars,  or 
when  the  possession  of,  or  title  to  lauds  or  tenements  is  in  con- 
troversy; and  to  review  upon  the  appeal  from  such  judgment 
any  intermediate  or  collateral  order  of  the  Court  or  judge  at 
chambers,  involving  the  merits  and  necessarily  affecting  the 
judgment. 

Btcond.  An  order  granting  or  refusing  a  new  trial,  sustaining 
or  overruling  a  demuiTer,  or  affecting  a  substantial  right  in  an 
action  or  proceeding. 

This  Court  may  reverse,  aflSrm,  or  modify  the  judgment,  or 
order  appealed  fiom  as  to  any  or  all  the  parties,  and  may,  if  nec- 
essary, order  a  new  trial. 


' 


278 


ARUONA. 


[Part  10. 


When  the  judgment  or  order  is  reversed  or  modified,  this 
Court  may  make  complete  restitution  of  all  property  and  rights 
lost  I>y  the  erroneous  judgment  or  order. 

The  District  Courts  have  jurisdiction  as  follows : 

Original  jurisdiction  in  all  civil  cases  where  the  amount  exceeds 
one  hundred  dollars,  exclusive  of  interest,  and  in  cases  involving 
the  title  or  possession  of  real  property. 

Appellate  jurisdiction  in  Justice  Court  actions,  and  ordei-s  of 
judgments  of  the  Probate  Courts  in  certain  cases. 

The  Probate  Courts  have  jurisdiction  of  estates  of  deceased 
persons. 

Justices'  Courts  have  jurisdiction  as  follows. 

1.  Of  an  action  arising  on  contract  for  the  recovery  of  nioney 
only,  if  the  sum  claimed  does  not  exceed  three  hundred  dollars. 

2.  Of  an  action  for  damages  for  injury  to  tho  person,  or  for 
taking  or  detaining  personal  property,  or  for  injuring  real  or  per- 
sonal property,  if  the  damages  claimed  do  not  exceed  three  hun- 
dred dollars. 

3.  Of  un  action  upon  a  bond  conditioned  for  tho  payment  of 
money  not  exceeding  three  hundred  dollars,  though  the  jjenalty 
exceed  that  sum,  the  judgment  to  bo  given  for  tho  sum  actually 
due  ;  when  the  payments  aro  to  be  made  by  installments,  an 
action  may  be  brought  for  each  installment  as  it  becomes  due. 

4.  Of  an  action  for  the  foreclosure  of  any  moi*tgage,  or  tho 
enforcement  of  any  lien  on  personal  property,  where  the  debt 
secured  does  not  exceed  three  hundred  dollars. 

5.  Of  an  action  to  recover  pergonal  projjerty,  when  the  value 
of  sucl.  personal  property  does  not  exceed  three  hundred  dollars. 

Their  jurisdiction  does  not  extend  to  civil  actions  in  which  the 
title  to  real  property  is  brought  in  question.  Nor  to  an  action 
or  proceeding  against  ships,  vessels  or  boats,  or  against  the 
owners  or  matters  thereof,  when  the  suit  or  proceeding  is  for  the 
recovery  of  wages  for  a  voyage  performed  in  whole  or  in  part 
without  the  waters  of  this  Territory. 


Chap.  2.1 


ARIZONA. 


270 


CHAPTER  II. 


TERMS  OF.  COURTS— WHEN  AND  W  HERE  HELD. 


The  Supreme  Court  is  held  at  the  seat  of  governmen*,  (now 
Prt'Hcott,)  commencing  on  the  tirst  Monday  in  January  of  each 
year. 

The  District  Courts  in  the  several  counties  ore  held  as  follows  : 

1.  County  of  Pinm,  on  the  second  Monday  in  Februai"y,  and 
the  second  Monday  in  October. 

2.  County  of  Yuma,  on  the  second  Monday  in  March,  and  the 
first  Monday  in  November. 

8.  County  of  Yavapai,  first  Monday  in  June,  and  first  Mon- 
day in  November. 

4.  County  of  Maricopa,  on  the  first  Monday  in  April,  and 
second  Monday  in  October. 

5.  County  of  Mohave,  on  the  tirst  Monday  in  May,  and  first 
Monday  in  October. 

G.  County  of  Pinal,  on  the  second  Monday  in  March,  and 
the  second  Mondav  in  November. 

District  Court  is  held  at  the  county  seat  of  each  county. 

Probate  Court  is  held  at  the  county  seat  of  each  county,  on  the 
first  Monday  of  January,  April,  July  and  October,  in  each  y«ar, 
and  the  judge  may  hold  such  adjourned  or  special  terms  as  he 
thinks  proper. 

Justices'  Courts  are  always  open  for  the  transaction  of  business. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


I.I 


125 


I 


2.8 


us 


1^ 


2.5 
2.2 


2.0 


i.8 


U    11.6 


V 


<?! 


Photographic 

Sciences 
Corporation 


i\ 


<^ 


Ll>^ 


;\ 


\ 


iv 


i^>;^^^ 

V 


^ 


23  WEST  MAIN  STREi? 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


V 


% 


^ 


280 


ABIZONA. 


[Part  10. 


CHAPTER  III. 


COMMENCEMENT  OF  SUITS. 


Civil  actions  are  commeuced  by  filing  a  complaint  with  the 
Court  or  justice. 

The  defendant  is  required  to  answer  the  complaint  in  District 
Court  actions  as  follows  : 

1.  If  the  defendant  is  served  within  the  county  in  which  the 
action  is  brought — twenty  days. 

2.  If  the  defendant  is  served  out  of  the  county,  but  in  the 
district  in  which  the  action  is  brought — thirty  days. 

3.  In  all  other  cases — forty  days. 

Where  p'*r8onal  service  cannot  be  had,  by  reason  of  the  defend- 
ant being  out  of  the  Territory,  or  where  he  conceals  himself  to 
avoid  service  of  process,  service  is  made  by  publication,  upon 
an  order  made  by  the  judge  or  justice  of  the  peace. 

In  District  Court  actions  the  order  shall  direct  the  publica- 
tion to  be  made  in  some  newspaper  to  be  desigrated  as  most 
likely  to  give  notice  to  the  defendant;  the  last  of  such  inser- 
tions to  be  sixty  days  from  the  first;  the  order  prescribes  the 
time  for  publication.  In  Justice  Court  actions  the  publication 
shall  be  once  a  week  fctr  at  least  four  weeks,  and  the  justice 
shall  issue  a  new  sum^nons  returnable  in  not  less  than  sixty, 
nor  more  than  seventy  days  from  its  date. 

In  Justice  Court  actions  the  time  mentioned  in  the  summons 
for  the  appearance  of  the  defendant  and  the  time  of  service 
shall  be  as  follows : 

1.  When  tha  summons  is  accompanied  by  an  order  to  arrest 
the  defendant,  it  shall  be  returnable  immediately. 

2.  When  the  defendant  is  not  a  resident  of  the  county,  it 
shall  be  returnable  not  more  than  two  days  from  its  date,  and 
shall  be  served  at  least  one  day  before  the  time  for  appearance. 

3.  In  all  other  cases  it  shall  be  returnable  in  not  less  than  six 
nor  more  than  ten  days  from  its  date,  and  shall  be  served  at 
least  four  days  before  the  time  for  appearance. 


Ohap.  4.] 


ABIZONA. 


281 


CHAPTER  IV. 

PLACE  OF  TRIAL  OF  CIVIL  ACTIONS. 

Actions  for  the  following  causes  shall  be  tried  in  the  county 
in  which  the  subject  of  the  action,  or  some  part  thereof,  is  sit- 
uated : 

i.  For  the  recovery  of  real  property,  or  of  an  estate  or  in- 
terest therein,  or  for  the  determination  in  any  form  of  such 
right  or  interest,  and  for  injuries  to  real  property. 

2.  For  the  partition  of  real  property. 

3.  For  the  foreclosure  of  a  mortgage  of  real  property. 
Actions,  for  the  following  causes  shall  be  tried  in  the  county 

where  the  cause,  or  some  part  thereof,  arose: 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by 
statute. 

2.  Against  a  public  oflScer. 

In  other  cases  the  action  shall  be  tried  in  the  county  in  which 
the  parties,  or  some  of  them,  reside,  at  the  commencement  of 
the  action,  or  the  defendant  may  be  found;  or  if  none  of  the 
parties  reside  in  the  Territory,  the  same  may  be  tried  in  any 
county  which  the  plaintiff  may  designate  in  his  complaint. 

The  Court  may,  on  motion,  change  the  place  of  trial. 

1.  When  the  county  designated  in  the  complaint  is  not  the 
proper  county. 

2.  When  there  is  reason  to  believe  that  an  impartial  trial  can- 
not be  had  therein. 

3.  When  the  convenience  of  witnesses  and  the  ends  of  justice 
would  be  promoted  by  the  change. 

4.  When  from  any  case  the  judge  is  disqualified  from  acting 
in  the  action. 

No  person  shall  be  held  to  answer  to  any  summons  issued  against 
him  from  a  Justice's  Court  in  a  civil  action,  in  any  precinct  other 
than  the  one  in  which  he  or  the  plaintiff  shall  reside,  except  in 
the  cases  following: 

1.  When  there  shull  be  no  Justice's  Court  for  the  precinct  or 


i 


282 


ABIZONA. 


[Part  10. 


village  in  which  the  defendant  or  plaintiff  may  reside,  or  no  jus- 
tice competent  to  act  in  the  case. 

2.  When  two  or  more  persons  shall  be  jointly  or  jointly  and 
severally  bound  in  any  debt  or  contract,  or  otherwise  jointly  lia- 
ble in  the  same  action,  and  reside  in  different  precincts  of  the 
same  county,  or  in  different  counties,  the  plaintiff  may  prosecute 
his  action  in  a  Justice's  Court  of  the  precinct  or  county  in  which 
any  of  the  debtors  or  other  persons  liable  may  reside. 

3.  In  case  of  injury  to  the  person,  or  to  real  and  personal 
property,  the  plaintiff  may  prosecute  his  action  in  the  precinct 
where  the  injury  was  committed,  or  where  the  defendant  may  be 
found. 

4.  "Where  personal  property,  unjustly  taken  or  detained,  is 
claimed,  or  damages  therefor  are  claimed,  the  plaintiff  may 
bring  his  action  in  any  precinct  or  county  in  which  the  property 
may  be  found,  or  in  which  the  property  was  taken. 

5.  When  the  defendant  is  a  non-resident  of  the  county,  he 
may  be  sued  in  any  precinct,  village  or  city  wherein  he  may  be 
found. 

6.  When  a  person  has  contracted  to  perform  any  obligation 
at  a  particular  place,  and  resides  in  another,  he  may  be  sued  in 
the  precinct  in  which  such  obligation  is  to  be  performed  or  in 
which  he  resides. 

7.  When  the  foreclosure  of  a  mortgage,  or  the  enforcement 
of  a  lien  upon  personal  property,  is  sought  by  the  action,  the 
plaintiff  may  sue  in  the  precinct,  village  or  city  where  the  prop- 
erty is  situated. 


CHAPTER  V. 


LIMITATION  OF  ACTIONS. 


The  periods  prescribed  for  the  commencement  of  actions  are 
as  follows ; 
Within  five  years — An  action  for  the  recovery  of  real  property 


Chap.  5.] 


ARIZONA. 


288 


or  the  possession  thereof  ;  an  action  upon  a  judgment  or  decree 
of  any  Court  of  the  United  States,  or  of  any  State  or  Territory 
within  the  United  States. 

Within  four  years — An  a'^Hon  upon  any  contract,  obligation, 
or  liability  founded  upon  an  instrument  of  writing. 

Within  three  years — An  action  for  trespass  upon  real  property  ; 
an  action  for  taking,  detaining  or  injuring  any  goods  or  chattels ; 
including  actions  for  the  specific  recovery  of  personal  property ; 
an  action  for  relief  on  the  ground  of  fraud,  the  cause  of  action 
in  such  case  not  to  be  deemed  to  have  accrued  until  the  dis- 
covery by  the  aggrieved  party  of  the  facts  constituting  the  fraud. 

Within  two  years — An  action  upon  a  contract,  obligation  or 
liability,  not  founded  upon  an  instrument  of  writing;  also,  an 
action  against  a  sheriff,  coroner,  or  constable,  upon  the  liability 
incurred  by  the  doing  of  an  act  in  his  official  capacity,  and  in 
virtue  of  his  office,  or  by  the  omission  of  an  official  duty,  in- 
cluding the  non-payment  of  money  collected  upon  an  execution. 
An  action  on  an  open  account,  for  goods,  wares  and  merchan- 
dise sold  and  delivered;  an  action  for  any  article  charged  in  a 
store  account. 

Within  one  year — An  action  for  libel,  slander,  assault,  bat- 
tery, or  false  imprisonment;  an  action  against  a  sheriff  or  other 
officer  for  the  escape  of  a  prisoner  arrested  on  civil  process. 

The  statute  begins  to  run  from  the  time  the  cause  of  action 
accrued. 

Part  payment  does  not  prevent  the  statute  running;  but  in 
an  action  brought  to  recover  a  balance  due  upon  a  mutual  open 
account,  where  there  have  been  reciprocal  demands  between  the 
parties,  the  cause  of  action  shall  be  deemed  to  have  accrued 
from  the  time  of  the  last  item  proved  in  the  account  on  either 
side.  • 

An  action  upon  a  contract,  obligation  or  liability  for  the  pay- 
ment of  money,  founded  upon  an  instrument  of  writing,  exe- 
cuted out  of  this  Territory',  can  only  be  commenced  as  follows: 

First.  Within  one  year,  when  more  than  two  and  less  than 
five  years  have  elapsed  since  the  cauae  of  action  accrued. 

Second.  Within  six  months,  when  more  than  five  years  have 
elapsed  since  the  cause  of  action  accrued. 


IP  ^ 


284 


ARIZONA. 


[Part  10. 


When  the  cause  of  action  has  arisen  in  another  State,  Ter- 
ritory, or  foreign  country,  and  is  there  outlawed,  no  action  will 
lie  in  this  Territory.  If  when  the  cause  of  action  accrues 
against  a  person,  he  is  out  of  the  Territory,  the  action  may  be 
commenced  within  the  term  herein  limited,  after  his  return  to 
the  Territory;  and  if  after  the  cause  of  action  accrues  he  departs 
from  the  Territory,  the  time  of  his  absence  shall  not  be  part  of 
the  time  limited  for  the  commencement  of  the  action. 


CHAPTER   VI. 


ATTACHMENTS. 


The  plaintiff  at  the  time  of  issuing  his  summons,  or  any  time 
afterward,  may  have  the  property  of  the  defendant  attached  as 
security  for  the  satisfaction  of  any  judgment  that  may  be  recov- 
ered, unless  the  defendant  give  security  to  pay  such  judgment 
as  hereinafter  provided  in  the  following  cases : 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  di- 
rect payment  of  money,  which  contract  was  made,  or  is  payable 
in  this  Territory,  and  is  not  secured  by  a  mortgage,  lien  or 
pledge,  upon  real  or  personal  property,  or  if  so  secured,  that 
such  security  has  been  rendered  nugatory  by  the  act  of  the  de- 
fendant. 

2.  In  an  action  upon  a  contract,  express  or  implied,  for  the 
direct  payment  of  money,  against  a  defendant  not  residing  in 
this  Territory. 

The  clerk  of  the  Court  shall  issue  the  writ  of  attachment 
upon  receiving  an  affidavit  by,  or  on  behalf  of  the  plaintiff, 
which  shall  be  filed,  showing: 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying 
the  amount  of  such  indebtedness,  over  and  above  all  legal  set- 
offs or  counter-claims)  upon  a  contract,  express  or  implied,  for 
the  direct  payment  of  money,  and  that  such  contract  was  made, 
or  is  payable  in  this  Territory,  and  that  the  payment  of  the  same 


Chap.  6.  J 


ABIZONA. 


285 


lias  not  been  secured  by  any  mortgage,  lien  or  pledge  upon  real 
or  personal  property;  or 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying 
the  amount  of  such  indebtedness,  as  near  as  may  be,  over  and 
above  all  legal  set-offs  or  counter-claims),  and  that  the  defendant 
is  a  non-resident  of  this  Territory;  and 

3.  That  the  sum  for  which  the  attachment  is  asked  is  a  bona 
fide  existing  debt  due,  and  owing  from  the  defendant  to  the 
plaintiff,  and  that  the  attachment  is  not  sought,  and  the  action 
is  not  prostcuted  to  hinder,  delay  or  defraud  any  creditor  or 
creditors  of  the  defendant. 

A  written  undertaking  is  required  on  behalf  of  the  plaintiff, 
in  a  sum  not  less  than  double  the  amount  claimed,  with  suffi- 
cient sureties,  to  the  effect  that  if  the  defendant  recover  judg- 
ment the  plaintiff  will  pay  all  costs  awarded  the  defendant,  and 
all  damages  which  he  may  sustain  by  reason  of  the  attachment, 
not  exceeding  the  amount  specified  in  the  undertaking. 


CHAPTER  VII. 
ARREST  IN  CIVIL  ACTIONS. 

The  defendant  may  be  arrested  in  the  following  cases  : 

1.  In  an  action  for  the  recovery  of  money  or  damages,  in  a 
cause  of  action  arising  upon  contract,  express  or  implied,  when 
the  defendant  is  about  to  depart  from  the  Territory  with  intent 
to  defraud  his  creditors  ;  or  when  the  action  is  for  willful  injury 
to  person,  to  'jharacter,  or  tu  property  known  to  belong  to  an- 
other. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled,  or  fraudulently  misapplied,  or  converted  to  his  own 
use  by  a  public  officer,  or  an  officer  of  a  corporation,  or  an 
attorney,  factor,  broker,  agent  or  clerk,  in  the  course  of  his 
employment  as  such,  or  by  any  other  person  in  a  fiduciary  capac- 


I 


286 


ABIZONA. 


[Part  10. 


ity,  or  for  misconduct  or  neglect  in  oflSce,  or  in  a  professional 
employment,  or  for  a  willful  violation  of  duty, 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property,  or  any  part  thereof,  has 
been  concealed,  removed,  or  disposed  of,  so  that  it  cannot  be 
found  or  taken  by  the  officer. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt  or  incurring  the  obligation  for  which  the  ac- 
tion is  brought,  or  in  concealing  or  disposing  of  the  property, 
for  the  taking,  detention,  or  conversion  of  which  the  action  is 
brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  prop- 
erty, or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

An  affidavit  is  required  on  behalf  of  the  plaintiff,  setting 
forth  the  grounds  of  arrest,  and  also  an  undertaking  with  suffi- 
cient sureties,  in  an  amount  of  at  least  five  hundred  dollars. 


CHAPTER  VIII. 


JUDGMENTS  AND  JUDGMENT  LIENS. 

A  judgment  is  the  final  determination  of  the  rights  of  the 
parties  in  an  action  or  proceeding. 

Immediately  upon  the  docketing  of  a  judgment  it  becomes  a 
lien  upon  all  the  real  estate  of  the  judgment  debtor  not  exempt 
from  execution  in  the  county,  owned  by  him  at  the  time,  or  which 
he  may  afterwards  acquire,  until  the  lien  expires.  The  lien 
continues  two  years.  A  transcripf,  of  the  original  docket,  certi- 
fied by  the  clerk,  may  be  filed  with  the  recorder  of  any  other 
county,  and  thereby  constitute  a  lien  upon  the  lands  of  the 
judgment  debtor  in  such  county. 


. 


Chap.  9.1 


ARIZONA. 


287 


CHAPTER  IX. 
EXECUTIONS,  EXEMPTIONS,  SALE  AND  REDEMPTION. 


Executton  may  be  issued  at  any  time  within  five  years  after 
the  entry  of  judgment.  Until  a  levy  is  made,  property  is  not 
affected  by  execution. 

The  following  property  is  exempt  from  execution  : 

1.  The  homestead,  consisting  of  a  quantity  of  land,  together 
with  the  dwelling  house  thereon  and  its  appurtenances,  and  the 
water  rights  and  privileges  pertaining  thereto,  sufficient  to  irri- 
gate the  land,  not  exceeding  in  value  the  sum  of  five  thousand 
dollars,  allowe  :  to  the  head  of  a  family.  The  homestead  may 
be  set  apart  after  execution  levied. 

2.  All  spinning-wheels,  weaving-looms  with  the  apparatus,  and 
stoves  put  up  and  kept  for  use  in  any  dwelling-house. 

3.  A  seat,  pew,  or  slip  occupied  by  such  person  or  family  in 
any  house  or  place  of  public  worship. 

4.  All  cemeteries,  tombs,  and  rights  of  burial,  while  in  use 
as  repositories  of  the  dead. 

5.  All  arms  and  accoutrements  kept  for  use ;  all  wearing 
apparel  of  every  person  or  family. 

6.  The  library  and  school  books  of  every  individual  and  family, 
not  exceeding  one  hundred  and  fifty  dollars,  and  all  family 
pictures. 

7.  To  each  householder  ten  goats  or  sheep,  with  their  fleeces, 
and  the  yarn  or  cloth  manufactured  from  the  same ;  two  cows,  five 
swine,  and  provisions  and  fuel  f«r  the  comfortable  subsistence 
of  such  household  and  family  for  six  months. 

8.  To  each  householder,  all  household  goods,  furniture  and 
utensils,  not  exceeding  in  value  six  hundred  dollars. 

9.  The  tools,  implements,  materials,  stock,  apparatus,  team, 
vehicle,  horses,  harness,  or  other  things  to  enable  any  person  to 
cany  on  the  profession,  trade,  occupation  or  business  in  which  he 
is  wholly  or  principally  engaged,  not  exceeding  in  value  six 
hundred  dollars. 


288 


ARIZONA. 


[Part  10. 


10.  One  sewing  machine  and  one  musical  instrument. 

11.  A  sufficient  quantity  of  hay,  grain,  feed,  and  roots  for 
properly  keeping  the  above  named  animals  for  three  months. 

An  execution  may  be  made  returnable  in  not  less  than  ten  nor 
more  than  sixty  days  after  its  receipt  by  the  sheriff. 
Notice  of  sale  must  be  given  as  follows: 

1.  In  case  of  perishable  property,  a  reasonable  time. 

2.  In  case  of  personal  property,  not  less  than  five  nor  more 
than  ten  days. 

3.  In  case  of  real  property,  twenty  days. 

Upon  the  sale  of  real  property,  when  the  estate  is  less  than  a 
freehold  of  two  years  unexpired  term,  the  sale  shall  be  absolute. 
In  all  other  cases,  the  real  property  is  subject  to  redemption 
within  six  months  after  the  sale,  upon  paying  to  the  purchaser 
the  amount  of  the  purchase,  with  eighteen  per  cent,  in  addition^ 
and  all  taxes  or  assessments  paid  by  the  purchaser. 


CHAPTER   X. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTION. 

"When  an  execution  is  returned  unsatisfied  in  whole  or  in  part,, 
the  judgment  creditor,  at  any  time  after  such  return  is  made,  is 
entitled  to  an  order  from  the  judge  of  the  Court,  requiring  such 
judgment  debtor  to  appear  and  answer  concerning  his  property 
before  such  judge  or  a  referee  appointed. 


I« 


Chap.  11.1 


AfilZONA. 


289 


CHAPTER  XL 


ESTATES  OF  DECEASED  PERSONS. 


Immediately  after  the  appointment  of  the  executor  or  admin- 
istrator, he  shall  give  notice  thrcigh  a  newspaper  published  in 
the  county,  if  ther«  be  one,  and  if  not,  then  in  such  newspaper 
designated  by  the  Court,  requiring  all  persons  having  claims 
against  the  deceased  to  present  them,  with  the  necessary  vouch- 
ers, within  ten  months  after  publication  of  the  notice.  If  a 
claim  be  not  presented  within  the  ten  months,  it  shall  be  forever 
barred ;  however,  if  it  be  not  then  due  or  is  contingent,  it  may 
be  presented  within  ten  months  after  it  shall  become  due  or 
absolute  ;  and  when  it  shall  be  made  to  appear  by  the  affidavit 
of  the  claimant,  to  the  satisfaction  of  the  executor  or  adminis- 
trator, and  the  probate  judge,  that  the  claimant  had  no  notice 
by  reason  of  being  out  of  the  Territory,  it  may  be  presented  at 
any  time  before  a  decree  of  distribution  is  entered.  Every  claim 
presented  to  the  executor  or  administrator  shall  be  supported 
by  the  affidavit  of  the  claimant,  that  the  amount  is  justly  due, 
that  no  payments  have  been  made  thereon,  and  that  there  are 
no  offsets  to  the  same  to  the  knowledge  of  the  claimant  or  other 
affiant ;  provided,  that  when  the  affidavit  is  made  by  any  other 
person  thao  the  claimant,  he  shall  set  forth  in  the  affidavit  the 
reason  it  is  not  made  by  the  claimant. 

The  affidavit  may  be  sworn  to  before  any  officer  authorized  to 
take  oaths. 

When  a  claim  is  presented  and  allowed  by  the  executor  or  ad- 
ministrator, it  shall  then  be  presented  to  the  probate  judge  for  his 
approval,  and  within  thirty  days  thereafter  filed  with  the  Probate 
Court. 

If  a  claim  be  founded  upon  a  bond,  note,  or  other  instrument, 
the  original  instrument  shall  be  presented.  If  the  claim  be  se- 
cured by  a  mortgage  or  other  lien,  such  mortgage  or  other  evi- 
dence of  liens  shall  be  attached  to  the  claim,  and  filed  therewith, 
unless  the  same  be  recorded  in  the  office  of  the  recorder  of  the 


290 


ARIZONA. 


[Part  10. 


county  in  which  the  land  lies,  in  which  case  it  shall  be  sufficient 
to  describe  the  mortgage  or  lien,  and  refer  to  the  date,  volume 
and  page  of  its  record.  In  all  cases  the  claimant  may  withdraw 
his  claim  from  file  on  leaving  a  certified  copy,  with  a  receipt  en- 
dorsed thereon  by  himself  or  agent. 

After  a  claim  is  rejected,  suit  must  be  brought  thereon  within 
three  months  or  it  is  forever  barred;  if  it  be  not  then  due,  suit 
must  be  brought  within  three  months  from  the  time  it  falls  due. 
An  outlawed  claim  must  not  be  allowed. 

When  a  judgment  has  been  rendered  against  the  testator  or 
intestate  in  his  life-time,  no  execu{>ion  shall  issue  thereon  after 
his  death;  but  a  certified  copy  oi  such  judgment  shall  be  pre- 
sented to  the  executor  or  administrator,  and  be  allowed,  and 
filed  and  rejected,  as  any  other  claim,  but  need  not  be  supported 
by  the  affidavit  of  the  claimant;  and  if  justly  due  and  unsatis- 
fied, shall  be  paid  in  due  course  of  administration;  provided, 
however,  that  if  the  execution  shall  have  been  actually  levied 
upon  any  property  of  the  deceased,  the  same  may  be  sold  for  the 
satisfaction  thoreof,  and  the  officer  making  the  sale  shall  accovnt 
to  the  executor  or  administrator  for  any  surplus  in  his  hands. 
The  executor  or  administrator  may,  however,  require  the  affida- 
vit of  the  claimant,  or  other  satisfactory  proof,  that  the  judg- 
ment, or  any  portion  thereof,  is  justly  due  and  unsatisfied. 


CHAPTER  XII. 


AFFIDAVITS  AND  DEPOSITIONS. 


An  affidavit  takes  in  another  State  or  Territory,  to  be  used  in 
this  Territory,  shall  be  taken  before  a  commissioner  appointed 
by  the  Governor  of  this  Territory  to  take  affidavits  and  deposi- 
tions in  such  State  or  Territory,  or  before  any  judge,  or  notar;' 
public,  or  clerk  of  a  Court  having  a  seal ;  when  taken  before  a 
judge  the  genuineness  of  the  judge's  signature,  the  existence  of 
the  Court,  and  the  fact  that  such  judge  is  a  member  thereof, 


Ohap.  12.] 


\RIZONA. 


291 


shall  be  certified  by  the  clerk  of  the  Court  under  the  seal  thereof. 
The  deposition  of  a  witness  out  of  the  Territory  may  be  taken 
in  an  action  at  any  time  after  the  service  of  the  summons  or  the 
appearance  of  the  defendant.  It  shall  be  taken  under  a  com- 
mission issued  from  the  Court  under  the  seal  of  smch  Court.  It 
shall  be  issued  to  a  person  agreed  upon  by  the  parties,  or  if 
they  do  not  agree,  to  any  judge  or  justict  /  the  peace  selected 
by  the  officer  granting  the  commission,  Ox  ,o  a  commissioner 
appointed  by  the  Governor  of  this  TerritOi.'y  to  take  affidavits 
and  depositions.  The  deposition  mup'  oe  retarneJ  in  a  sealed 
envel'^pe,  directed  to  the  clerk  or  other  person  designated  or 
•  agioud  upon,  by  mail  or  other  usual  chanv.el  of  conveyance. 


CHAPTER  XIII. 


ACKNOWLEDGMENTS, 


The  proof  or  acknowledgment  of  every  conveyance  affecting 
any  real  estate  shall  be  taken  by  some  one  of  the  following 
officers : 

1.  If  acknowledged  or  proved  within  this  Territory,  by  some 
judge  or  clerk  of  a  Court  having  a  seal,  or  some  notary  public, 
or  justice  of  the  peace  of  the  proper  county. 

2.  If  acknowledged  or  proved  without  this  Territory,  and 
within  the  United  States,  by  some  judge  or  clerk  of  any  Court 
of  the  United  States,  or  of  any  State  or  Territory  having  a  seal, 
or  by  any  commissioner  appointed  by  the  Governor  of  this  Ter- 
ritory for  that  purpose. 

3.  If  acknowledged  or  proved  withoiit  the  United  States,  by 
some  judge  or  clerk  of  any  Court  of  any  State,  Kingdom,  or 
Empire  having  a  seal,  or  by  any  notarj'  public  therein,  or  by  any 
minister,  commissioner,  or  consul  of  the  United  States  appointed 
to  reride  therein. 

Every  officer  who  shall  take  the  proof  or  acknowledgment  of 
any  conveyance  affecting  any  real  estate,  shall  grant  a  certificate 


292 


ARIZONA. 


[Part  10. 


thereof,  and  cause  such  certificate  to  be  indorsed  or  annexed  to 
such  conveyance.     Such  certificate  shall  be: 

1.  When  granted  by  any  judge  or  clerk — under  the  hand  of 
such  clerk  or  judge. 

2.  When  granted  by  an  officer  who  has  a  seal  of  office — under 
the  hand  and  official  seal  of  such  officer. 

The  certificate  of  such  acknowledgment  shall  state  the  fact  of 
acknowledgment,  and  that  the  person  making  the  same  was  per- 
sonally known  to  the  officer  granting  the  certificate  to  be  the 
person  whose  nafae  is  subscribed  to  the  conveyance  as  a  party 
thereto,  or  was  proved  to  be  such  by  the  oath  or  affirmation  of  a 
credible  witness,  whose  name  shall  be  inserted  in  the  certificate. ' 

A  married  woman  may  convey  her  real  estate,  her  husband 
joining  in  the  conveyance.  No  acknowledgment  to  ba  made  by 
a  married  woman  unless  she  be  personally  known  to  the  officer 
taking  the  same  to  be  the  person  whose  name  is  subscribed  to 
such  conveyance  as  a  party  thereto,  or  shall  be  proved  to  be 
such  by  a  credible  witness;  nor  unless  such  married  woman  shall 
be  made  acquainted  with  the  contents  of  such  conveyance,  and 
shall  acknowledge  on  an  examination,  apart  from  and  without 
the  hearing  of  her  husband,  that  she  executed  the  same  freely 
and  voluntarily,  wijbliout  fear  or  compulsion,  or  undue  influence 
of  her  husband,  and  that  she  does  not  wish  to  retract  the  execu- 
tion of  the  sam«. 


CHAPTER  XIV. 


MARRIED  WOMEN. 


All  property,  both  real  and  personal,  of  the  wife,  owned  by 
her  before  marriage,  and  that  acquired  afterwards  by  gift,  be- 
quest, devise,  or  descent,  shall  be  her  separate  property,  and  is 
not  subject  to  the  debts  of  her  husband. 

All  property  acquired  after  marriage,  by  either  husband  or 
wife,  except  such  as  may  be  acquired  by  gift,  bequest,  devise,  or 
descent,  shall  be  common  property. 


Chap.  14.] 


ARIZONA. 


293 


The  separate  property  of  the  husband  is  not  liable  for  the 
debts  of  the  wife  contracted  before  marriage,  but  the  separate 
property  of  the  wife  shall  be  and  continue  liable  for  all  such 
debts. 


CHAPTER.  XV. 


CHATTEL  MORTGAGES 


Chattel  mortgages  Liay  be  made  on  the  following  property, 


viz: 


Upholsteiy  and  furniture  used  in  hotels  and  public  boarding- 
houses,  when  mortgaged  to  secure  the  purchase  money  of  the 
identical  articles  mortgaged,  and  not  otherwise  ;  saw  mill,  grist 
mill,  and  steamboat  machinery;  tools  and  machinery  used 
by  machinists,  foundry  men,  and  other  mechanics;  steam 
boilers,  steam  engines,  locomotives,  engines,  and  the  rol- 
ling stock  of  railroads ;  printing  presses  and  other  print- 
ing material  ;  instruments  and  chests  of  a  surgeon,  physi- 
cian or  dentist ;  libraries  of  all  persons ;  machinery  and 
apparatus  for  mining  purposes;  growing  crops  grain  in 
store  or  field ;  teams  and  implements  pertaining  to  farming; 
stock  of  all  kinds  on  farm. 

No  chattel  mortgage  made  shall  have  any  legal  force  or  effect, 
(except  between  the  parties  thereto)  unless  the  residence  of  the 
mortagor  and  mortagee,  their  profession,  trade,  or  occupation, 
the  sum  to  be  secured,  the  rate  of  interest  to  be  paid,  when  and 
where  p^iyable,  shall  be  set  out  in  the  mortgage ;  and  the  mort- 
gagor and  mortgagee  shall  make  affidavit  that  the  mortgage  is 
bona  fide,  and  without  any  design  to  defr  "d  or  delay  creditors, 
which  affidavit  shall  be  attached  to  such  mortgage. 

Mortgage  not  valid  as  to  third  parties,  unless  duly  recorded, 
or  ui^less  the  mortgagee  receives  and  retains  the  actual  posses- 
sion of  the  property. 


294 


ABIZOKA. 


[Part  10. 


CHAPTER  XVI. 
INTEREST. 

When  there  is  no  express  agreement  fixing  a  different  rate  of 
nterest,  interest  sha^^  be  allowed  at  the  rate  of  ten  per  cent, 
per  annum,  on  all  moneys  after  they  become  due  on  any  bond, 
bill,  promissory  note,  or  other  instrument  of  writing,  or  any 
judgment  recovered  before  any  Court  in  this  Territory  for  money 
lent,  for  money  due  on  the  settlement  of  accounts  from  the  day 
on  which  the  balance  is  ascertained,  and  for  money  received  for 
the  use  of  another. 

Parties  may  agree,  in  writing,  for  the  payment  of  any  rate  of 
interest  whatever  on  money  due  or  to  become  due  on  any  con- 
tract ;  any  judgment  rendered  on  such  contract  shall  conform 
thereto,  and  shall  bear  the  interest  agreed  upon  by  the  parties, 
and  which  shall  be  specified  in  the  judgment. 

Parties  may  agree,  in  writing,  to  compound  interest. 


CHAPTER  XVn. 
BILLS  OP  EXCHANGE. 

Three  days'  grace  allowed  on  notes  and  bills,  except  sight 
drafts. 

The  rate  of  damages  to  be  allowed  and  paid  upon  the  usual 
protest  for  the  non-payment  of  bills  of  exchange,  drawn  or 
negotiated  within  this  Territory,  shall  be  as  follows: 

1.  If  such  bill  shall  have  been  drawn  upon  any  person  or 
persons  in  any  of  the  United  States  or  Territories  east  of  the 
Rocky  Mountains,  fifteen  dollars  upon  the  hundred  ujjon  the 
principal  sum  specified  in  such  bill. 

2.  If  such  bill  shall  have  been  drawn  on  any  person  or  per- 


■■■iillliaiilHiiiiiH 


Chap.  17.] 


ARIZONA. 


295 


sons  in  any  port  or  place  in  Europe  or  any  foreign  country, 
twenty  dollars  upon  the  hundred  upon  the  principal  sum  speci- 
fied in  such  bill. 

Such  damages  shall  be  in  lieu  of  interest,  charges  of  protest, 
and  all  other  charges  incurred  previous  to  and  at  the  time  of 
giving  notice  of  non-payment;  but  the  holder  of  such  bill  shall 
be  entitled  to  demand  and  recover  lawful  interest  upon  the 
aggregate  amount  of  the  principal  sum  specified  in  such  bill  and 
of  the  damages  thereon,  from  the  time  notice  of  protest  for  non- 
payment shall  have  been  given,  and  payment  of  such  principal 
sum  shall  have  been  demanded. 

All  notes  in  writing  made  and  signed  by  any  person  whereby 
he  shall  promise  to  pay  to  any  other  person,  or  to  his  own  order, 
or  to  the  ordej  of  any  other  person,  or  unto  the  bearer  any  sum 
of  money  therein  expressed,  shall  be  due  and  payable  as  therein 
expressed,  and  shall  have  the  same  effect  and  be  negotiable  in 
like  manner  as  inland  bills  of  exchange,  according  to  the  cus- 
toms of  merchants. 

No  person  in  this  Territory  shall  be  charged  as  an  acceptor 
on  a  bill  of  exchange  unless  his  acceptance  shall  be  in  writing 
signed  by  himself  or  his  lawful  agent. 

Every  holder  of  a  bill  presenting  the  same  for  acceptance 
may  requiie  that  the  acceptance  be  written  on  the  bill;  a  refusal 
to  comply  with  such  request  shall  be  deemed  a  refusal  to  ac- 
cept, and  the  bill  may  be  protested  for  non-acceptance. 


CHAPTER  XVIII. 


INSOLVENCY. 
There  is  no  insolvency  law  in  this  Territory. 


PART  XI. 


UTAH  TERRITORY, 


PREPARED   EXPRESSLY  FOR  THIS  WORK    BY   LEWIS   BURNES, 

SALT  LAKE  CITY. 


CHAPTER  I. 
THE  COUETS  AND  THEIR  JURISDICTION. 

Tlie  Supreme  Court  of  the  Territory  has  general  appellate 
jurisdiction  only. 

There  are  three  United  States  District  Courts  in  the  Territory, 
with  unlimited  jurisdiction  in  all  chancery  and  law  actions. 

The  Probate  Courts, 

One  in  each  county :  Their  jurisdiction  is  limited  to  strictly 
probate  business,  except  that  they  may  try  divorce  cases  where 
both  parties  agree  upon  that  forum  ;  removable,  however,  at  the 
pleasure  of  either  party,  to  the  District  Court.  The  judges 
have  the  right  to  enter  town  sites,  and  preside  over  the  board  of 
selectmen ;  in  other  words,  the  County  Court. 


298 


UTAH. 


[Part  11. 


Justices'  Courts 

Have  jurisdiction  in  all  actions  where  the  amount  involved  is 
less  than  three  hundred  dollars,  except  in  cases  involving  titles 
to  real  estate. 


CHAPTER  II. 


THE  TERMS  OF  COURTS  AND  PLACES   OF   HOLDING 

SAME. 

The  Supreme  Court  sits  the  first  Monday  of  January,  and  the 
second  Monday  of  June,  of  each  year,  at  Salt  Lake  City. 

The  District  Courts  sit  as  follows :  1st  District,  comprising 
the  counties  of  Millard,  Sevier,  San  Pete,  Juab,  Utah  and 
Wasatch,  is  held  at  Prove  City,  Utah  County,  on  third  Mondays  in 
September,  November,  February  and  May. 

Second  District,  comprising  the  counties  of  Kane,  Washing- 
ton, Piute,  Iron  and  Beaver,  is  held  at  Beaver  City,  Beaver  Co.^ 
on  first  Mondays  in  March,  May,  September  and  December. 

Third  District,  comprising  the  counties  of  Salt  Lake,  Tooele, 
Summit,  Davis,  Morgan,  Weber,  Box  Elder,  Cache  and  Rich- 
land, is  held  in  the  city  and  county  of  Salt  Lake,  on  the  second 
Monday  in  April,  fourth  Thursday  in  September,  second  Mon- 
day in  November,  and  first  Monday  in  February. 

The  Probate  Courts  and  Justices'  Courts  are  always  open  for 
the  transaction  of  business ;  the  former  at  their  respective 
county  court  houses,  and  the  latter  in  their  respective  precincts. 


Chap.  3.] 


UTAH. 


299 


CHAPTER  III. 

COMMENCEMENTS   OF   SUITS  AND   TIME    ALLOWED 
DEFENDANTS  TO  PLEAD. 

Suits  may  be  commenced  at  any  time.  Ten  days  after  service 
are  allowed  the  defendants  to  plead,  answer,  demur,  or  file 
motions  in  cases  in  the  District  Courts  and  Supreme  Court. 

In  Justices'  Courts,  defendants  may  be  required  to  answer 
within  two  days  after  service,  and  not  longer  than  ten  days  after 
service. 


CHAPTER  IV. 


LIMITATIONS  OF  ACTIONS. 


Actions  for  the  recovery  of  real  estate  can  only  be  brought 
within  seven  years  after  the  plaintiffs  having  been  lawfully 
seized  and  possessed  of  the  premises  by  himself,  grantor,  ances- 
tor, or  predecessor. 

Actions  for  the  recovery  of  money  on  notes  or  written  obli- 
gations must  be  brought  within  four  years  after  the  cause  of  ac- 
tion accrued  ;  on  accounts  within  two  years  ;  and  on  a  judgment 
of  a  Court  of  record,  five  years. 


30Q 


-> 


UTAH. 


[Part  11. 


CHAPTER   V. 
ATTACHMENTS 

Can  only  issue  upon  the  filing  of  an  affidavit  on  behalf  of  the 
plaintiff,  showing  the  existence  of  a  debt  upon  contract,  sj  .  '- 
fying  the  nature  and  amount  thereof,  as  near  as  may  be,  ^r 
and  above  all  legal  set-offs  or  counter-claims  ;  that  the  same  has 
not  been  secured  by  any  mortgage,  lien,  or  pledge  upon  real  or 
personal  estate  within  the  Territory,  or  if  so  secured,  that  such 
security  has  been  rendered  nugatory  by  the  act  of  the  defend- 
ant; that  the  defendant  is  not  residing  in  this  Territory,  or  that 
the  defendant  has  departed  the  Territory  or  county  where  the 
action  is  brought,  or  that  the  defendant  stands  in  defiance  of  an 
officer,  or  conceals  himself  so  that  process  cannot  be  served 
upon  him,  or  that  he  is  disposing  of  his  property  with  the  intent 
to  defraud  his  creditors;  that  the  debt  is  an  actual  bona  fide  ex- 
isting demand  due  and  owing  from  the  defendant  to  the  plain- 
tiff, and  that  the  action  is  not  sought  or  prosecuted  to  hinder, 
d«lay,  or  defraud  any  creditor  of  the  defendant. 

There  must  also  be  executed  and  filed  an  undertaking,  with 
two  sufficient  securities,  in  a  sum  not  less  than  $200,  nor  exceed- 
ing the  amount  claimed  by  the  plaintiff,  conditioned,  that  if  the 
defendant  recover  judgment  in  the  action,  the  plaintiff  will  pay 
all  costs  that  may  be  awarded  to  the  defendant,  not  exceeding 
ihfi  amount  specified  in  the  undertaking. 


CHAPTER   VI. 

AEEESTS  IN  CIVIL  ACTIONS 

Are  issued  upon  filing  an  undertaking  and  affidavit,  the  same  in 
effect  as  those  required  in  attachment  cases,  except  that  in  addi- 


■■j^iil 


. 


Chap.  6.1 


UTAH. 


301 


tion  to  the  liability  of  sureties  in  attachment  cases  for  costs,  in 
cases  of  arrest  they  are  liable  for  any  damage  which  the  defend- 
ant may  sustain  by  reason  of  the  arrest,  not  exceeding  the  sum 
specified  in  the  undertaking,  and  the  undertaking  must  be  in  a 
sum  not  less  than  $500.  In  either  case,  the  sureties  must  an- 
nex an  affidavit  to  the  undertaking;  that  he  is  a  resident  and 
householder,  or  freeholder  within  the  Territory,  and  worth 
double  the  sum  specified  in  the  undertaking,  over  and  above  all 
his  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution. 

The  affidavit  in  cases  of  arrest  differs  from  attachment  affida- 
vits only  in  this,  that  the  arrest  may  be  made  in  any  action  for  a 
fine,  or  for  money  or  property  embezzled,  or  fraudulently  mis- 
applied, or  converted  to  his  own  use  by  a  public  officer,  or  an 
officer  of  a  corporation,  or  an  attorney,  factor,  or  broker,  agent 
or  clerk,  in  the  course  of  his  employment,  or  by  any  person  in 
a  fiduciary  capacity  for  misconduct  or  neglect  in  office,  or  in  a 
professional  employment,  or  for  a  willful  violation  of  duty  or  4n 
an  action  to  recover  the  possession  of  personal  property,  unjustly 
detained;  when  the  property,  or  any  part  thereof,  has  been  con- 
cealed, removed  or  disposed  of,  so  that  it  cannot  be  found  or 
taken  by  the  Territorial  marshal,  his  deputy,  or  the  sheriff  or 
his  deputy;  or  where  the  defendant  has  been  guilty  of  fraud  in 
contracting  the  debt  or  incurring  the  obligation  for  which  the 
action  is  brought,  or  is  concealing  or  disposing  of  the  property 
for  the  taking,  detention  or  conversion  of  which  the  action  is 
brought ;  or  when  the  defendant  has  removed  or  disposed  of  bis 
property  or  is  about  to  do  so,  with  the  intent  to  defraud  his 
creditors. 


CHAPTER  VII. 


JUDGMENTS  AND  JUDGMENT  LIENS. 


A  judgment  is  collectable  by  execution,  and  is  a  lien  upon 
the  real  estate  of  the  defendant  within  the  county  where  it  is 


809 


m'AH. 


[Part  11. 


rendered,  from  its  rendition  ;  executions  may  be  issued  to 
other  counties,  but  the  judgment  constitutes  a  lien  there, 
only  from  the  time  of  filing  a  transcript  of  the  judgment 
for  record  in  the  office  of  the  county  recorder  of  the  county  to 
which  it  is  sent. 


CHAPTER  VIII. 


EXECUTIONS,    EXEMPTIONS,  SALES,    AND    REDEMP- 
TION. 


Property,  real  or  personal,  maybe  sold  on  twenty  days'  notice, 
under  execution,  but  the  execution  may  issue  returnable  in  not 
less  than  ten  days  nor  more  than  ninety  days,  and  the  execution 
may  require  the  officer  to  satisfy  the  judgment  in  the  particular 
kind  of  money  ordered  in  the  judgment. 

The  following  property  is  exempt  from  execution  : 

1.  Chairs,  tables,  desks  and  books,  to  the  value  of  one  hun- 
dred dollars  belonging  to  the  judgment  debtor. 

2.  Necessary  household,  table  and  kitchen  furniture  belonging 
to  the  judgment  debtor,  including  stoves,  not  to  exceed  one 
stove  for  every  five  persons  of  the  family.  Stovepipe  and  stove 
furniture,  wearing  apparel,  one  bedstead,  one  bed,  and  the 
necessary  bedding  for  every  two  persons  in  the  family,  and  pro- 
visions and  fuel  for  the  family  sufficient  for  sixty  days. 

3.  The  farming  utensils  or  implements  of  husbandry  of  the 
judgment  debtor.  Also,  two  oxen  or  two  horses,  or  two  mules 
and  their  harness ;  one  cow  and  calf  for  every  five  persons  in 
the  family ;  one  cart  or  wagon,  and  food  for  such  oxen,  horses, 
cows,  or  mules,  for  sixty  days ;  also  all  seed  grain,  or  vegetables, 
actually  provided,  reserved,  or  on  hand,  for  the  purpose  of 
planting  or  sowing  at  any  time  within  the  ensuing  six  months, 
not  exceeding  in  value  one  hundred  dollars. 

4.  The  tools,  tool  chest,  and  implements  of  a  mechanic  or 
artisan,  necessary  to  carry  on  his  trade.     The  instruments  and 


Chap.  8.  J 


UTAH. 


303 


chests  of  a  surgeon,  physician,  surveyor  or  dentist,  necessary  to 
the  exercise  of  their  professions,  with  their  scientific  and  profes- 
sional libraries,  and  the  law  library  of  an  attorney  or  counsellor, 
and  the  libraries  of  ministers  of  the  gospel. 

5.  The  tent  or  cabin  of  a  miner,  including  a  table,  camp  stools, 
a  bed  and  bedding,  and  necessary  tools  used  in  mining,  not  exceed- 
ing the  value  of  four  hundred  dollars,  with  provisions  necessary 
to  his  support  for  thirty  days. 

6.  Two  oxen  or  two  horses  or  two  mules,  and  their  harness, 
and  one  cart  and  wagon,  by  the  use  of  which  a  cartman,  team- 
ster or  other  laborer  habitually  earns  his  living,  and  food  for 
such  oxen,  horses,  or  mules  for  sixty  days;  and  a  horse,  har- 
ness, and  vehicle  used  by  a  physician,  surgeon,  or  minister  of 
the  gospel,  in  making  his  professional  visits. 

7.  One  sewing  machine  not  to  exceed  in  value  $100.00,  in 
actual  use  by  the  debtor  or  his  family.  If  the  debtor  be  head 
of  a  family,  then  there  shall  be  a  further  exemption  of  five  head 
of  sheep  and  the  wool  therefrom  for  every  person  in  his  family, 
two  hogs  and  three  pigs  under  three  months  old,  and  the  neces- 
sary food  for  all  such  animals  for  sixty  days.  All  flax  raised  by 
the  debtor  and  the  manufactures  therefrom,  and  a  -  jloth  manu- 
factured in  the  family  of  the  debtor  for  their  own  use;  all  spin- 
ning wheels  and  looms  and  other  instruments  of  domestic  labor 
kept  for  family  use.  The  earnings  of  such  debtor  for  his  per- 
sonal service,  or  those  of  his  family,  at  aay  time  within  sixty 
days  next  preceding  the  levy. 

8.  All  fire  engines,  hooks  and  ladders,  with  the  carts,  trucks, 
and  carriages,  hose,  buckets,  implements  and  apparatus.  All 
furniture  and  uniforms  of  any  fire  company  or  department  now 
existing,  or  which  may  be  under  the  laws  of  this  Territory  here- 
after organized. 

9.  All  arms,  ammunitions,  uniforms,  and  accoutrements,  re- 
quired by  law  to  be  kept  by  a  person. 

10.  All  court  houses,  jails,  public  offices  and  buildings,  school 
houses,  and  houses  of  public  worship,  lots,  grounds  and  per- 
sonal property  appertaining  thereto.  The  fixtures,  furniture, 
books,  papers,  and  appurtenances  belonging  and  appertaining 
to  the  court-house,  jail,  and  public  offices  belonging  to  any 


304 


UTAH. 


[Part  11. 


county,  or  for  the  use  of  schools  or  houses  of  public  vrorahip ; 
and  all  cemeteries,  public  squares,  parks  and  places,  town  halls, 
markets  for  the  use  of  fire  departments  and  military  organiza- 
tions, and  the  lots  and  grounds  thereto  belonging,  or  held  by 
any  town  or  incorporated  city,  or  dedicated  to  such  town  or  city 
to  health,  ornament,  or  public  use,  to  the  use  of  any  fire  or 
military  company  now  existing  or  hereafter  organized. 
11.  For  homestead  exemption,  see  "  Homestead." 

Redemption 

Of  real  property  may  be  made  by  the  defendant,  or  any  creditor 
subsequent  to  plaintiffs  lien,  any  time  within  six  months  from 
the  day  of  sale. 


CHAPTER  IX. 


PROCEEDINGS  IN  AID  OF  EXECUTIONS. 


On  the  return  by  a  sheriff  or  marshal  of  an  execution  "  un- 
satisfied," the  judgment  creditor  upon  affidavit  or  otherwise 
showing  to  the  satisfaction  of  the  Court,  or  of  the  judge  thereof, 
that  the  judgment  debtor  has  property  which  he  unjustly  refuses 
to  apply  towards  the  satisfaction  of  the  judgment,  may  apply, 
and  the  Court  or  judge  may,  by  an  order,  require  the  judgment 
debtor  to  appear  at  a  specified  time  and  place  before  such  judge, 
or  a  referee  appointed  by  him,  to  answer  under  oath  concerning 
the  same;  and  such  proceedings  may  thereupon  be  had  for  the 
application  of  the  property  of  the  judgment  debtor  towards  the 
satisfaction  of  the  judgment,  as  are  provided  upon  the  return  of 
an  execution;  that  is,  to  require  the  appearance  of  witnesses, 
and  hear  the  same,  and  make  orders  in  relation  thereto.  And 
on  proof  by  affidavit,  or  otherwise,  that  any  person  or  corpora- 
tion has  property  of  such  judgment  debtor,  or  is  indebted  to 
him  in  an  amount  exceeding  $50,  the  judge  may  by  order  require 
such  person,  or  corporation,  or  any  officer  or  member  thereof,  ta 


Chap.  9]. 


UTAH. 


305 


appear  at  a  specified  time  and  place  before  hiiu,  or  a  referee  ap- 
pointed by  him,  and  answer  concerning  the  same. 

The  judge  or  referee  may  order  any  property  of  the  judgment 
debtor  not  exempt  from  execution  in  the  hands  of  such  debtor, 
or  any  other  person,  or  due  to  the  judgment  debtor,  to  be  apphed 
towards  the  satisfaction  of  the  judgment. 

If  it  appear  that  a  person  or  corporation,  alleged  to  have 
property  of  the  judgment  debtor  or  indebted  to  him,  claims  an 
interest  in  the  property  adverse  to  him,  or  denies  the  debt,  the 
Court  or  judge  may  authorize,  by  an  order  mad'j  to  that  effect, 
the  judgment  creditor  to  institute  an  action  against  such  parson 
or  corporation  for  the  recovery  of  such  interest  or  debt ;  and  the 
Court  or  judge  may,  by  order,  forbid  a  transfer  or  other  disposi- 
tion of  such  interest  or  debt,  until  an  action  can  be  commenced 
a  d  prosecuted  to  judgment.  Such  order  may  be  modified  or 
vacated  by  the  judge  granting  the  same,  or  the  Court  in  which 
the  action  is  brought,  at  any  time,  on  such  terms  as  may  be  just. 


CHAPTER  X. 


SECURITY  FOR  COSTS. 


It  is  made  the  duty  of  the  clerk  of  the  District  Court,  in  all 
civil  actions,  to  require  the  party  commencing  the  suit  to  pay  in 
advance  or  secure  by  bond  with  security  the  payment  of  the 
probable  amount  of  the  costs  of  the  action,  provided  that  the 
said  costs  shall  at  the  conclusion  of  the  trial  be  paid  by  the 
party  against  whom  said  costs  are  adjudged  by  the  Court. 


306 


UTAH. 


[Part  11. 


CHAPTER  XL 


APPEALS 


From  Justices'  Courts  to  the  proper  District  Court  may  be 
taken  any  time  within  thirty  days  after  rendition  of  judgment, 
except  where  the  judgment  is  for  an  amount  less  than  $20,  by 
filing  a  notice  of  such  appeal,  and  serving  a  copy  on  the  oppo- 
site party;  and  by  filing  with  the  justice,  within  five  days  after 
filing  the  notice  of  appeal,  an  undertaking  with  two  good  sure- 
ties, who  shall  justify  under  oath. 

Appeals  from  the  District  Court 

May  be  taken  to  the  Supreme  Court  from  any  final  judgment  or 
order  in  a  civil  action,  except  when  expressly  made  final  by  the 
act,  any  time  within  one  year  after  the  rendition  of  judgment. 
From  any  order  granting  or  refusing  a  new  trial,  or  from  an 
order  granting  or  dissolving  an  injunction,  or  from  an  order  re- 
fusing to  grant  or  dissolve  an  injunction,  and  from  any  special 
order  made  after  the  final  judgment,  within  sixty  days  after  the 
order  is  made  and  entered  upon  the  minutes  of  the  Court;  or 
from  any  interlocutory  judgment  or  order  in  cases  of  partition, 
sale  or  division,  to  be  taken  within  sixty  days  after  the  rendition 
of  the  same. 

The  appeal  is  taken  by  filing  with  the  clerk  of  the  Court  with 
whom  the  judgment  or  order  appealed  from  is  entered,  a  notice 
stating  the  appeal  from  the  same,  or  some  specific  part  thereof, 
and  serving  a  copy  of  the  notice  on  the  adverse  party  or  his  at- 
torney. To  render  the  appeal  effectual  for  any  purpose,  in  any 
case,  a  written  undertaking  shall  be  executed  on  the  part  of  the 
appellant,  by  at  least  two  sureties,  to  the  effect  that  the  appel-^ 
lant  will  pay  all  damages  and  costs  which  may  be  awarded 
against  him  on  the  appeal;  or  a  sum  not  exceeding  $100  shall 
be  deposited  with  the  clerk  with  whom  the  judgment  or  order 
was  entered,  to  abide  the  event  of  the  appeal;  such  undertaking 
shall  be  filed,  or  such  deposit  made  with  the  clerk,  within  at 
loast  five  days  after  the  notice  of  appeal  is  filed. 


. 


^ 


Chap.  11.1 


UTAH. 


307 


An  appeal  from  a  judgment  or  order  for  the  payment  of 
money  shall  not  stay  the  execution  of  the  judgment  or  order, 
unless  a  written  undertaking  is  executed  on  the  part  of  the  ap- 
pellant, by  two  or  more  sureties,  stating  their  places  of  residence 
and  occupation,  to  the  effect  that  they  ara  bound  in  double  the 
amount  named  in  the  judgment  or  order  appealed  from;  and 
should  the  judgment  or  order  appealed  from,  or  any  part 
thereof,  be  affirmed,  the  appellant  shall  pay  the  amount  directed 
to  be  paid  by  the  judgment  or  order,  or  the  part  thereof  which 
shall  be  affirmed,  and  all  damages  and  costs  which  may  be 
awarded  against  the  appellant,  and  in  the  kind  of  money  in 
which  the  Court  to  which  it  is  appealed  shall  order  the  payment 
thereof. 

The  sureties  shall  file  affidavit  as  to  their  worth,  over  all  just 
debts  and  liabilities,  exclusive  of  pioperty  exempt  from  execu- 
tion. 

When  the  appeal  shall  be  thus  perfected,  it  shall  stay  all  pro- 
ceedings upon  the  judgment,  until  the  action  of  the  appellate 
Court  shall  be  had.  The  appellee  may  object  to  the  sureties,  as 
to  their  sufficiency,  and  if  the  objection  be  well  taken,  and  the 
appellant,  upon  five  days'  notice,  fail  to  give  additional  security, 
the  appeal  shall  be  regarded  as  if  not  taken.^ 

Upon  trial  in  the  appellate  Court,  the  successful  party  is  en- 
titled to  have  the  judgment  remitted  to  the  Court  from  which 
the  appeal  was  taken,  for  execution. 


CHAPTER  XII. 


ESTATES  OF  DECEASED  PERSONS. 


Claims  against  deceased  estates  must  be  made  within  two 
years  after  administration  begins. 

Satisfactoiy  proof  of  the  amount  due  must  be  made  to  the 


308 


UTAH. 


[Part  11. 


Probate  Court;  this  may  be  made  after  expirf'ion  of  two  years, 
provided  notice  of  the  claim  be  given  within  the  two  years. 

The  executor  or  administrator  of  the  estate  has  as  long  to 
make  final  settlement  in,  as  the  Probate  Court  will  permit, 
which  is  usually,  as  long  as  he  can  show  any  unsettled  business 
of  the  estate. 

The  widow  or  ^ther  members  of  tho  family  are  entitled  to  the 
homestead,  and  such  further  allowances  as  the  Probate  Court 
may  deem  proper  for  the  maintenance  of  the  widow. 

The  largest  discretion  is  given  the  Court  in  making  orders 
respecting  the  estate. 


CHATER  XITI. 


HOMESTEADS. 


There  shall  be  allowed  homestead  exemption,  to  be  selected 
by  the  debtor,  consisting  of  lands  and  appurtenances  thereon 
not  exceeding  in  value  one  thousand  dollars  for  the  judgment 
debtor,  and  the  further  sum  of  two  hundred  and  fifty  dollars 
for  each  member  of  the  family,  (which,  in  some  instances, 
amount  to  thirty  or  forty,  including  wives  and  children).  If  the 
j)remises  amount  in  value  to  more  than  the  homestead  exemp- 
tion, it  may  be  ordered  sold  or  partitioned,  and  in  case  of  sale, 
the  excess  over  the  exemption  valuation  is  subject  to  execution  ; 
anci  in  case  of  partition,  the  part  divided  off  from  the  homestead 
is  3ubject  to  sale  on  execution,  the  valuation  to  be  made  by  per- 
sons chosen  by  the  debtor  and  the  oflScers  having  the  execution. 


Chap.  U.] 


UTAH. 


309 


CHAPTER  XIV. 


DEPOSITIONS 


May  be  taken  in  any  action  at  any  time  after  service  of  sum- 
mons, or  the  appearance  of  the  defendant,  and  in  a  special  pro- 
ceeding after  a  question  of  fact  has  arisen  therein,  in  the  follow- 
ing cases: 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding, 
or  a  person  for  whose  immediate  benefit  the  action  or  proceeding 
is  prosecuted  or  defended. 

2;  When  the  witness  resides  out  of  the  county  in  which  his 
testimony  is  to  be  used. 

3.  When  the  witness  is  about  to  leave  the  county  where  the 
action  is  to  be  tried,  and  will  probably  continue  absent  when  his 
testimony  is  required. 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial,  is 
too  infirm  to  attend,  or  resides  within  the  county  but  more  than 
fifty  miles  from  the  place  of  trial. 

Either  party  may  have  a  deposition  of  a  witness  taken  before 
a  notary  public,  justice  of  the  peace,  judge,  or  clerk  of  a  Court, 
by  serving  notice  on  the  adverse  party  of  the  time  and  place  of 
the  examination,  together  with  a  copy  of  the  affidavit  showing 
the  case  to  be  one  of  the  kind  above  mentioned.  The  notice 
must  be  served  at  least  five  days,  and  one  additional  day  for 
every  twenty-five  miles  of  distance  of  the  place  of  examination 
from  the  residence  of  the  person  served,  unless  for  cause  the 
Court  prescribes  a  shorter  time. 

The  witness  may  be  cross-examined,  and  after  having  his  tes- 
timony carefully  examined  and  read  to  him,  he  shall  sign  it ;  and 
the  officer  taking  the  deposition  shall  certify  it  up  to  the  proper 
Court,  enclosed  in  an  envelope,  and  addressed  to  the  clerk  of 
the  Court  in  which  the  action  is  pending,  or  to  such  person  as 
the  parties  may  agree  upon,  or  transmit  through  the  mail  ;  and 
such  deposition  may  be  used  by  either  party  on  the  trial.  No 
objections  to  the  form  of  an  interrogatory  at  the  trial  will  be 
beard,  unless,  made  at  the  time  of  taking,  if  the  party  making 
the  objection  is  in  attendance  at  the  taking. 


310 


UTAH. 


[Part  11. 


If  a  deposition  be  taken  on  account  of  the  absence  from  the 
county,  or  intended  absence,  or  because  the  witness  is  too 
infirm  to  attend,  before  being  used  proof  must  be  made  by  affi- 
davit or  oral  testimony  that  the  witness'  disability  continues,  to 
the  best  of  affiant's  knowledge.  The  deposition  may  be  read  in 
case  of  his  death. 

Depositions  once  taken  may  be  read  in  any  stage  of  the  cause 
by  either  party,  and  shall  be  deemed  evidence  of  the  party  read- 
ing them. 

If  a  deposition  be  taken  out  of  the  Territory,  it  must  be  upon 
a  commission  issued  by  the  Court,  under  its  seal,  upon  five  days' 
notice  to  the  adverse  party  of  the  application  for  a  commission, 
and  shall  be  issued  to  a  person  to  be  agreed  upon  between  the 
parties ;  and  in  case  of  disagreement,  then  to  such  person  as 
the  Court  may  appoint,  or  to  a  commissioner  appointed  by  the 
Governor  of  this  Territory  to  take  affidavits  and  depositions  in 
the  States  or  Territories. 

Such  interrogatories,  direct  and  cross,  as  the  parties  prepare, 
or,  in  case  of  disagreement,  such  as  the  Court  shall  settle,  shall 
be  annexed  to  the  commission.  The  cause  shall  not  be  con- 
tinued on  account  of  the  non-return  of  the  commission  and 
deposition,  unless  upon  evidence  satisfactory  to  the  Court,  that 
the  testimony  of  the  witness  is  necessary,  and  that  proper  dili- 
gence has  been  used  to  obtain  it. 

The  statute  also  provides  for  the  taking  of  testimony,  and  lor 
its  perpetuation,  upon  application  to  the  Co  art,  showing  that 
the  applicant  expects  to  be  a  party  to  an  action  in  this  Territory, 
and  giving  the  names  of  persons  whom  he  expects  will  be  adverse 
parties ;  that  the  proof  of  some  facts  is  necessary  to  perfect  the 
,  title  to  property  in  which  he  is  interested,  or  to  establish  a  mar- 
riage, descent,  heirship,  or  any  other  matter  which  it  may  here- 
after become  material  to  establish ;  though  no  suit  may  at  the 
time  be  anticipated.  The  names  of  the  witnesses  and  the  gen- 
eral outline  of  the  facts  expected  to  be  proven,  to  be  stated. 
Affidavits  or  other  proofs  filed  with  the  testimony  shall  be  prima 
facte  evidence  of  the  facts  stated  therein.  No  particular  form 
of  the  certificate  of  the  officer  taking  the  deposition  is  prescribed 
by  the  statute. 


Chap.  15]. 


UTAH. 


311 


CHAPTER  XV. 
JUDICIAL  BECORDS,  HOW  PROVEN. 

A  judicial  record  of  this  Territory,  or  of  the  United  States,  or 
of  any  State  or  Territory  of  the  United  State  ■^,  may  be  admitted 
in  the  Courts  of  this  Territory  by  the  attestation  of  the  clerk, 
with  the  seal  of  the  Court  annexed,  together  with  the  certificate 
of  the  judge,  chief  justice,  or  presiding  magistrate,  as  the  case 
may  be,  that  said  attestation  is  in  due  form. 

A  judicial  record  of  a  foreign  country  may  be  proved  by  the 
production  of  a  copy  thereof,  certified  by  the  clerk,  with  the 
seal  of  the  Court  annexer' ,  if  there  be  a  clerk  and  seal,  to  be  a 
true  copy  of  such  record,  together  with  a  certificate  of  the  judge 
of  the  Court,  that  the  person  making  the  certificate  is  the  clerk 
of  the  Court,  or  the  legal  keeper  of  the  records;  and  in  either 
case,  that  the  signature  is  genuine,  and  the  cortificate  in  due 
form;  together  with  the  certificate  of  the  minister  or  embas- 
sador of  the  United  States,  or  of  a  consul  of  the  United  States, 
in  such  foreign  country,  that  there  is  such  a  Court,  specifying 
generally  its  jurisdiction,  and  verifying  the  signatiire  of  the 
judge  and  clerk,  or  other  legal  keeper  of  the  record. 

A  copy  of  the  judicial  record  of  a  foreign  country  shall  also 
be  admissible  in  evidence,  upon  proof,  first,  that  the  copy 
offered  has  been  compared  by  the  witness  with  the  original,  and 
is  an  exact  transcript  ef  the  whole  of  it;  and  that  such  original 
was  in  the  custody  of  the  clerk  of  the  Court,  or  other  lega 
keeper  of  the  same;  and  that  the  copy  is  duly  attested  by  the 
seal  which  is  proved  to  be  the  seal  of  the  Court  where  the  record 
remains,  if  it  be  the  record  of  a  Court;  or  if  there  be  no  such 
seal,  or  if  it  be  not  a  record  of  a  Court,  by  the  signature  of  the 
legal  keeper  of  the  original. 


312 


UTAH. 


[Part  11. 


CHAPTER  XVI. 


ACKNOWLEDGMENTS. 

Deeds,  mortgages,  powers  of  attorney,  or  other  instruments 
afi'ecting  the  title  to  real  estate,  must  be  acknowledged  or  proved 
before  they  can  legally  be  placed  upon  record. 

The  following  is  the  form  of  the  acknowledgment  certificate : 


State  or   Territory   of- 


-COUNTY. 


ss. 


On  this- 
fore  me  — 


-day  of- 


-A.  D.  187  ,  personally  appeared  be- 


,  a  notary  public  in  and  for  said  county, , 

who  is  personally  known  to  me  to  be  the  person  described  in 
and  who  executed  the  foregoing  instrument,  who  acknowledged 
to  me  that  he  executed  the  same  freely  and  voluntarily,  and  for 
the  uses  and  purposes  therein  mentioned.  In  witness  whereof, 
I  have  hereunto  set  my  hand  and  official  seal,  on  the  day  and  year 

last  above  written. , 

[seal.]  Notary  Public. 

The  following  officers  are  authorized  to  take  acknowledgments, 
and  certify  to  them: 

If  acknowledged  or  proven  within  this  Territory,  by  some 
judge  or  clerk  of  a  Court  having  a  seal,  or  some  notary  public, 
or  county  recorder,  or  by  a  justice  of  the  peace  of  the  county 
where  the  conveyance  is  executed,  and  to  be  recorded. 

If  acknowledged  or  proved  out  of  this  Territory,  and  within 
any  State  or  Territory  in  the  United  States,  by  some  judge  or 
clerk  of  any  Court  of  the  United  States,  or  of  any  State  or 
Territory  having  a  seal,  or  by  a  notary  public,  or^  by  a  commis- 
sioner appointed  by  the  Governor  of  this  Territory  for  that  pur- 
pose. 

If  acknowledged  or  proved  without  the  United  States,  by  some 
judge  or  clerk  of  any  Court  of  any  State,  Kingdom,  or  Empire 
haying  a  seal,  any  notary  public  therein,  or  any  minister,  com- 


Chap.  16.  J 


UTAH. 


318 


missioner,  or  consul  of  the  United  States  appointed  to  reside 
therein.  Such  oflOieers  may  take  and  certify  such  proofs  or  ac- 
knowledgments by  their  respective  deputies,  in  the  names  of 
their  principals. 

When  granted  by  a  judge  or  clerk,  the  certificate  shall  be 
under  the  seal  of  his  Court. 

When  granted  by  an  officer  who  has  an  official  seal,  it  shall 
be  under  such  seal. 

By  a  justice  of  the  peace,  under  his  hand. 


CHAPTER  XVII. 


PAETNERSHIPS. 


The  statute  provides  how  partners  may  be  summoned,  and 
how  judgments  against  partners  may  be  rendered,  but  is  thus 
brief  and  pointed. 

When  two  or  more  persons,  associated  in  any  business,  trans- 
act such  business  in  a  common  name,  whether  it  comprises  the 
names  of  such  persons  or  not,  the  associates  may  be  sued  by 
such  common  name,  the  summons  in  such  cases  being  served  on 
one  or  more  of  the  associates,  but  the  judgment  in  such  cases 
shall  bind  only  the  joint  property  of  the  associates.  The  piivate 
property  of  persons  engaged  in  copartnership  shall  be  held 
liable  for  the  debts  of  the  firm,  only  whan  the  partnership  prop- 
erty shall  prove  insufficient  to  pay  them.  The  assignment  of  a 
partner  in  trade  to  satisfy  a  creditor  of  the  firm  shall  be  deemed 
valid  in  law,  but  is  not  to  be  construed  to  authorize  the  assign- 
ment of  partnership  eflfects  to  satisfy  individual  claims  of  any 
of  the  parties. 


314 


UTAH. 


[Part  11. 


CHAPTER  XVIII. 


MABRIED  WOMEN 


All  property  owned  by  either  spouse  before  marriage,  and 
that  acquired  after  marriage  by  gift,  bequest,  devise,  or  descent, 
is  the  separate  property  of  that  spouse  by  whom  the  same  is 
owned  or  acquired  ;  and  as  such,  may  be  held,  owned  and  con- 
trolled, and  transferred  and  disposed  of  by  the  spouse  so  own- 
ing or  acquiring  it,  without  any  limitation  or  restriction  by 
reason  of  marriage. 

Either  spouse  may  sue  and  be  sued  in  law.  No  right  of  dower 
shall  be  allowed. 


CHAPTER  XIX. 


CORPOEATIONS. 


Any  number  of  persons,  not  less  than  six,  one-third  of  whom 
being  residents  of  the  Territory,  may  incorporate  for  purposes 
of  manufacturiiig,  mining,  or  conducting  any  commercial  or 
other  industrial  pursuits,  or  for  constructing  roads,  ditches,  colo- 
nization and  improvements  for  lands,  colleges,  seminaries, 
churches,  libraries,  or  any  benevolent,  charitable,  christian  or 
scientific  associationSj  or  for  any  rightful  subject  consistent  with 
the  Constitution  of  the  United  States,  and  the  laws  of  the  Ter- 
ritory. 

Stock  may  be  subscribed  and  paid  up  in  property.  No  indi- 
vidual liability  upon  stockholders.  The  probate  judge  is  the 
the  officiating  officer  in  elTeccing  an  incorporation. 


Chap.  20.] 


UTAH. 


315 


CHAPTER  XX. 
CHATTEL  MORTGAGES 

We  have  no  statute  defining  what  property  is  the  subject  of 
chattel  mortgage,  but  an  action  for  the  recovery  of  debts  secured 
by  a  mortgage  on  either  real  or  personal  property,  or  both,  is 
provided  for  by  statute,  giving  power  to  the  Courts  to  render 
judgment  and  make  decree  of  foreclosure,  and  order  of  sale  of 
the  mortgaged  property,  in  satisfaction  of  the  debt,  and  provid- 
ing for  an  ordinary  judgment  lien  and  execution  for  unpaid  bal- 
ance, after  sale  of  the  mortgaged  property. 

Chattel  mortgages  are  void  as  to  creditors  or  innocent  purcha- 
sers, where  the  possession  of  the  mortgaged  property  remains  in 
the  mortgagor,  though  good  as  between  mortgagee  and  mortga- 
gor. 


CHAPTER  XXI. 


INTEREST  AND  USURY. 


Ten  per  cent,  per  annum  interest  is  allowed  on  debts  due, 
where  no  contract  as  to  interest  exists.  There  is  no  usury  stat- 
ute, and  parties  are  at  liberty  to  contract  for  rates  of  interest 
without  limit,  and  any  agreed  rate  is  collectable. 


CHAPTER  XXH. 


INSOLVENCY. 


There  is  no  insolvency  law  in  this  Territory. 


»  '  I 


PART  XII. 


BRITISH  COLUMBIA. 


PREPARED  EXPRESSLY  FOR  THIS  WORK  BY  M.  W.  T.  DRAKE, 

VICTORIA. 


CHAPTER  I. 
COURTS— THEIR  JURISDICTION  AND  TERMS. 

The  Supreme  Court  is  presided  over  by  a  chief  justice  and 
two  pusne  judges.  This  court  exercises  a  legal  and  equitable 
jurisdiction  in  all  matters.  It  has  sole  control  over  the  estate 
of  infants,  lunatics  and  deceased  persons,  and  claims  a  jurisdic- 
tion in  divorce  and  matrimonial  causes.  The  admiralty  juris- 
diction of  the  Province  is  vested  in  the  chief  justice  alone.  It 
is  the  Court  of  Appeal  from  all  inferior  tribunals,  and  from  it 
there  is  an  appeal  to  the  Supreme  Court  of  Canada  and  Privy 
Council  of  England. 

The  judges  also  sit  as  judges  of  assize  for  the  trial  of  criminals. 

The  Court  holds  three  terms  annually  for  the  purpose  of  dis- 
posing of  law  points  reserved  at  trials,  for  hearing  motions  for 
new  trials,  appeals,  special  cases,  etc.,  etc.  These  sittings  are 
held  at  Victoria,  and  the  terms  are  held  in  February,  April  and 
November. 

For  matters  of  procedure  the  judges  sit  constantly. 


818 


BRITISH   COLUMBIA. 


[Part  12. 


The  Assize  Courts  are  held  three  times  a  year,  for  the  trial  of 
prisoners  and  civil  causes  with  a  jury.  The  Assize  Courts  are 
held  all  through  the  Province,  the  judges  going  on  circuit  for 
the  purpose. 

All  matters  not  jury  cases  are  disposed  of  by  the  Court  on 
application. 

The  County  Court  is  held  for  the  trial  of  actions  of  debt  or 
damage  up  to  $500.  Actions  of  ejectment,  libel,  false  imprison- 
ment, and  some  others,  are  excluded  from  the  cognizance  of 
these  Courts. 

This  Court  is  held  every  month,  and  disposes  of  the  cases 
brought  before  it  without  pleadings,  and  in  a  summary  and  ex- 
peditious manner.  The  province  is  divided  into  six  districts  for 
this  purpose. 

The  justices  of  the  peace  have  no  civil  jurisdiction.  All 
prisoners  have  to  be  committed  by  the  justices  before  they  can 
be  tried.  At  the  assizes,  and  after  committal,  the  case  goes  be- 
fore the  grand  jury,  and  if  a  true  bill  is  found  the  prisoner  is 
put  on  his  tiial;  if  no  bill  is  found  he  is  at  once  discharged. 

The  municipalities  have  also  a  limited  jurisdiction  for  enforc- 
ing their  by-laws. 


CHAPTER  II. 


COMMENCEMENT   OF  SUITS. 


Civil  suits  in  the  Supreme  Court  are  commenced  by  writ  of 
summons,  to  which  the  defendant  has  to  appear  in  eight  days; 
if  he  fails  to  appear  after  due  service,  the  plaintiff  signs  judg- 
ment for  his  debt;  if  he  appears,  the  plaintiff  proceeds  to  state 
his  cause  of  action  in  a  pleading  called  a  declaration,  to  which 
the  defendant  replies  by  a  plea,  and  in  the  majority  of  cases 
the  action  being  thus  put  in  issue  is  set  down  for  trial ;  but  any 
neglect  of  the  defendant  to  proceed  according  to  the  rule,  sub- 
jects him  to  the  penalty  of  having  judgment  signed  against  him. 


Chap.  2.] 


BRITISH   COLUMBIA. 


819 


In  some  cases  the  pleadings  extend  considerably  beyond  this, 
until  at  last  they  arrive  at  issue  and  are  then  ripe  for  trial. 

In  the  generality  of  cases  a  jury  is  not  summoned  unless  at 
the  request  of  either  plaintiff  or  defendant,  but  the  judge  dis- 
poses of  both  law  and  fact. 

In  actions  on  bills  of  exchange  and  promissory  notes,  if  brought 
within  six  months  of  the  due  date  of  the  bill  or  note,  the  defend- 
ants are  not  allowed  to  defend  except  on  special  ground  shown 
in  affidavits. 

All  writs  must  be  personally  served,  unless  the  defendant  is 
keeping  out  of  the  way  to  avoid  service,  and  then  the  Court 
allows  substituted  service.  If  the  defendant  is  abroad,  whether 
a  foreigner  or  not,  special  forms  of  writ  are  provided,  but  the 
service  must  be  personal. 

In  equity  cases  proceedings  are  commenced  by  bill  of  com- 
plaint, being  a  narrative  of  the  circumstances  on  which  the  plain- 
tiff relies  for  relief.  The  defendant  has  a  month  to  answer,  and 
after  answer  there  are  several  different  modes  of  bringing  the 
suit  to  a  hearing.  The  evidence  is  generally  taken  on  af&davit, 
but  may  be  viva  voce.     A  single  judge  disposes  of  equity  cases 

without  a  jury. 
Equity  suits  can  be  disposed  of  at  any  place  the  plaintiff 

fixes ;  liable  to  be  changed  on  good  cause  shown. 


CHAPTER  III. 


LIMITATIONS  OF  ACTIONS. 


Six  years  is  the  limitation  for  all  simple  contract  debts ;  twenty 
years  for  all  specialty  debts.  In  case  the  cause  of  action  arose 
in  a  foreign  country,  the  defendant  may  plead  the  statute  of 
limitations  of  such  country  as  a  bar.  A  foreign  judgment  is 
placed  on  the  same  footing  as  a  simple  contract  debt,  and  has  to 
be  sued  within  the  same  time. 


890 


BBITISH  OOLUMBU. 


[Part  12. 


CHAPTER   IV. 
ATTACHMENTS— ABEEST  IN  CIVIL  ACTIONS. 

Attachments  are  not  allowed  except  under  the  Insolvency  Act, 
and  then  it  practically  binds  the  property  for  the  benefit  of  all 
creditors. 

Arrest  in  civil  actions  is  in  practice  only  resorted  to  for  the 
purpose  of  compelling  a  defendant  who  is  about  to  loave  the  ju- 
jisd'cfcion  to  give  security  for  the  alleged  debt.  The  sheriff 
keeps  him  in  charge  until  he  has  put  in  security,  or  until  the 
trial  of  the  action.  There  is  no  imprisonment  for  debt.  But 
the  County  Court  judges  have  power  of  committal  for  disobedi- 
ence of  orders  for  payment  of  money. 


CHAPTER   V. 


JUDGMENTS  AND  JUDGMENT  LIENS. 


A  judgment  binds  the  lauds  of  a  debtor  when  registered.  It 
also  enables  a  creditor  to  seize  the  goods  of  his  debtor,  or  to  com- 
pel payment  of  debts  due  to  the  debtor,  to  himself,  under  what 
are  called  garnishee  proceedings;  but  a  judgment  does  not  bind 
the  personal  property  of  the  debtoi"  until  the  writ  of  execution 
is  in  the  hands  of  the  sheriff. 


Chap.  6.] 


BBITISH  COLUMBIA. 


321 


CHAPTER  VI. 
EXECUTIONS,  EXEMPTIONS,   REDEMPTION  SALE. 

Executions  are  enforced  against  the  land  and  personalty  of 
the  debtor. 

The  debtor  is  entitled  to  an  exemption  of  five  hundred  dollars 
in  personalty. 

For  homestead  exemption,  see  "  Homesteads." 

The  debtor  may  redeem  his  property  at  any  time  before  sale. 
Personal  property  has  to  be  sold  without  any  delay,  and  by 
public  auction.     Real  property  is  advertised  thirty  days. 


CHAPTER  VII. 


SECURITY  FOR  COSTS. 


Is  always  required  when  the  plaintiff  is  resident  out  of  the 
jurisdiction  of  tlie  Court,  in  an  amount  of  five  hundrbd  dollars; 
but  if  within  the  jurisdiction,  he  may  commence  actions  in 
forma  pauperis,  if  he  is  not  in  a  position  to  pay  fees. 


CHAPTER  VHI. 


APPEALS 


Are  allowed  from  the  County  Courts  to  the  Supreme  Court,  if 
made  within  forty-eight  hours  after  the  decision  is  objected  to  ; 
from  the  Police  and  Magistrate  Courts  to  the  Supreme  Court,  if 
applied  for  in  four  days  ;  from  the  Supreme  Court  to  the  Privy 


322 


BRITISH   COLUMBIA. 


[Part  12. 


Council  of  England,  or  the  Supreme  Court  of  Canada,  if  the 
amount  in  dispute  is  over  fifteen  hundred  dollars.  Security  re- 
quired is  five  hundred  dollars  in  the  two  latter  cases. 


CHAPTER  IX. 
ESTATES  OF  DECEASED  PERSONS. 

Intestate  estates,  where  there  is  no  next  of  kin  or  creditor 
who  desires  administration,  are  managed  by  the  registrar  of  the 
Supreme  Court  as  official  administrator.  There  is  no  statuteablo 
time  for  sending  in  claims,  but  every  estate  is  advertised  and  a 
time  fixed.  The  claims  have  to  be  sworn  to — if  from  a  foreign 
country,  before  a  notary  public,  attested  by  the  British  ambassa- 
dor, consul,  or  charge  d'affaires.  Twelve  months  is  the  time  al- 
lowed to  settle  the  estate,  whether  the  deceased  died  intestate  or 
not.  If  the  deceased  left  a  will  legally  executed,  'us  executors 
manage  the  estate  without  filing  any  security,  and  only  file  ac- 
counts at  the  end  of  the  twelve  months.  If  they  neglect  their 
duty,  the  devisees  have  a  legal  remedy,  but  the  Court  does  not 
control  them. 

By  a  Provincial  Statute,  lands  of  an  intestate  descend  to  the 
same  persons  who  would  be  next  of  kin  of  personal  estate,  but 
in  such  a  case  the  widow  is  only  entitled  to  dower,  whifih  ia  a 
life  interest  in  one  third. 

A  testator  may  devise  lands  as  he  pleases  by  Lis  will.  Neither 
the  widow  or  children  are  entitled  by  law  to  any  interest. 


Chap.  10.] 


BRITISH    COLUMBIA. 


323 


CHAPTER  X. 


HOMESTEADS. 


Land  to  the  value  of  twenty  five  hundred  dollars  may  be 
made  a  homestead,  if  duly  registered  as  such  at  a  time  when  the 
owner  was  free  from  debt. 


CHAPTER   XL 
DEPOSITIONS. 

For  matters  in  civil  suits,  evidence  abroad  is  generally  taken 
by  commissioners  appointed  by  a  judge  of  the  Supreme  Court. 
In  other  matters,  affidavits  can  be  taken  before  any  minister, 
ambassador,  consul,  vice-consul,  or  consular  agent,  and  if  there 
is  no  one  representing  these  functionaries,  then  before  a  notary 
public  v.uly  certified  to  be  such  by  the  Governor  or  Secretary  of 
State. 


CHAPTER  XH. 

JUDICIAL  RECORDS— ACKNOWLEDGMENTS. 

Judicial  records  of  foreign  States  can  be  proved  by  examined 
copies,   sealed  with  the  seal  of  the  State  if  relating  to  State 


324 


BRITISH   COLUMBIA. 


[Part  12. 


documents,  or  the  seal  of  the  Court  if  relating  to  judicial  records. 
Acknowledgments  of  deeds  can  be  taken  before  a  notary  pub- 
lic, duly  certified  to  be  such  by  the  British  consul. 


CHAPTER  XIII. 
LIMITED  PAKTNERSHIPS. 

Joint  stock  companies  can  limit  the  liability  of  their  share- 
holders to  the  amount  subscribed  for  by  each,  by  registering  un- 
der the  statute. 

The  law  of  private  partnerships  now  allows  a  person  to  invest 
money  in  a  business  concern  and  receive  a  share  of  the  profits, 
without  being  liable  as  a  partner. 


CHAPTER  XIV. 

MARRIED  WOMEN 

Can  invest  the  loney  earned  by  any  trade  or  occupation,  and 
the  same  is  free  from  the  debts,  control  or  engagements  of  the 
husband  ;  and  landed  property,  held  before  marriage  or  acquired 
subsequent  thereto,  can  be  dealt  with  by  a  married  woman  as  if 
she  were  a  femme  sole,  with  this  exception  that  she  cannot  dis- 
pose of  the  same  by  will  unless  the  husband  consents. 


Chap.  15.] 


BRITISH   COLUMBIA. 


325 


'>s- 

'V/r 

''i  J^ 

■i 

^^ 

^'     ^ 

'/' 

CHAPTER  XV. 


MORTGAGES. 


Chattel  mortgages  must  be  registered  withiu  twenty-one  days 
after  execution,  and  an  affidavit  filed  of  tbe  day  and  date  of  ex- 
ecution, in  order  to  protect  the  property  from  execution  creditors 
of  the  grantor.  A  mortgage  unregistered  is  good  between  the 
parties,  and  if  the  mortgagee  take  the  property  into  his  own 
custody  an  execution  creditor  cannot  seize  it.  Furniture,  goods, 
merchandise,  etc.,  can  be  mortgaged.  Farming  stock  and  crops 
are  not  subject  to  the  Act. 

Mortgages  of  Land. 

A  mortgagee  of  laud  is  a  specialty  creditor ;  he  can  sue  his 
debtor  for  the  amount  due,  sell  the  mortgage  property,  or  fore- 
close the  mortgage ;  if  he  sells  the  mortgage  property,  it  is 
doubtful  whether  his  remedy  against  the  mortgagor  has  not 
gone,  ill  case  the  sale  fails  to  realize  the  whole  amount  due. 


CHAPTER   XVI. 


INTEREST  AND  USURY. 


The  legal  rate  of  interest  is  twelve  per  cent,  per  annum.  All 
judgments  carry  this  rate ;  so  do  accounts,  after  notice  that  in- 
terest will  be  charged ;  but  any  higher  rate  of  interest  is  per- 
fectly legal,  as  there  are  no  usury  laws  in  force. 


326 


BRITISH    COLUMBIA. 


[Part  12. 


CHAPTER  XVII. 
LAND  LAWS. 

Persons  can  acquire  land  (three  hundred  and  tweuty  acres)  by 

pre-emption,  and  on  a  survey  being  made,  a  grant  in  fee  simple 

is  issued  without  charge,  or  can  purchase  in  surveyed  districts 

at  $1  an  acre. 

Aliens. 

Foreign  citizens  can  be  naturalized  after  three  years'  residence 
and  taking  the  oath  of  allegiance. 


L 


INDEX 


^ 


INDEX. 


ARIZONA. 


Part  X. 


Paos. 

Acknowledgments 291 

Affidavits 290 

Answer — Time  Allowed 280 

Arrest  in  Civil  Actions 285 

Attachments 284 

Bankruptcy 295 

Bills  of  Exchange 294 

Chattel  Mortgages 293 

Commencement  of  Suits 280 

Courts 277 

*«     Terms  of 279 

"     Their  Jurisdiction 277 

"     Where  held...; 279 

Deceased  Persons — Estates  of 289 

Depositions 290 

Estates  of  Deceased  Persons 289 

Examination  of  Judgment  Debtor 288 

Executions 287 

Exemptions  fi-om  Execution 287 

Insolvency 295 

Interest 294 

Judgments 286 

Judgment  Liens 286 

Jurisdiction  of  Courts 277 

Liens  of  Judgments 286 

Limitation  of  Actions 282 


830 


INDEX. 


Faor. 

Married  Women 292 

Mortgagef)  of  Personal  Property 293 

Place  of  Trial  of  Civil  Actions 281 

Proceedings  Supplementary  to  Ez-xsution 288 

Promissory  Notes— Days  of  Grace •. 294 

Redemption 287 

Sale— Under  Execution 287 

Terms  of  Courts '. 279 

Time  Allowed  to  Answer \ 280 

Trial— Place  of. 281 


ATTORNEYS. 


Part  I. 


Arizona 18 

British  Columbia 18 

California 11 

Idaho 17 

Montana 17 

Nevada 16 

Oregon 15 

Utah 16 

Washington 16 

Wyoming 18 


BRITISH  COLUMBIA. 


Part  XII. 


Acknowledgments ; 828 

Affidavits 828 

Aliens 826 

Appeals 321 

Arrest  in  Civil  Actions 820 

Attachments 320 


INDEX. 


881 


Paob. 

Chattel  Mortgages 326 

Commencement  of  Suits 818 

Courts 817 

"     Terms  of 817 

•'     Their  Jurisdiction 817 

Deceased  Persona — Estates  of 822 

Depositions 328 

Estates  of  Deceased  Persons 322 

Executions 321 

Exemptions  from  Execution 321 

Homesteads 328 

Interest 326 

Joint  Stock  Companies 324 

Judgments 320 

Judgmijnt  Liens , 320 

Judicial  Records 323 

Jurisdiction  of  Courts 317 

Land  Laws 326 

Liens  of  Judgments 320 

Limited  Partnerships 324 

Limitation  of  Actions 319 

Married  Women 324 

Mortgages 325 

Mortgages  of  Land 325 

Naturalization , 326 

Partnerships — Limited 324 

Pleadings 318 

Rtidomption 321 

Sale— Under  Execution 321 

Security  for  Costs 321 

Terms  of  Courts 317 

Time  for  Appearance 318 

Usury 325 


CALIFORNIA. 
Part  III. 


Acknowledgments 95 

Acknowledgments— Forms  of 97 

Affidavits 93 

Agent  and  Principal 123 

Answer— Time  Allowed 35 


832 


INDEX. 


■    » 


! 


Pam. 

Answer— Time  Allowed  in  Justice's  Court 86 

Appeals  in  General 09 

Appeals  from  District  Court... 71 

Appeals  from  County  Courts 72 

Appeals  from  Probate  Courts 72 

Appeals  from  Justices' or  Police  Courts 73 

Arbitrations — .' 88 

Arrest  and  Bail 50 

Assignments— For  Benefit  of  Creditors 124 

Assignment  without  Prejudice  to  Set-off  or  Defense 34 

Attachments 43 

Bail— see  Arrest  and  Bail 50 

Bankruptcy 126 

Bills  of  Exchange— see  Negotiable  Instruments 115 

Bills  of  Lading 105 

Certificate  of  Sale  of  Real  Estate 63 

Chattel  Mortgages 107 

Claim  and  Delivery  of  Personal  Properly 48 

Compromise — Proceedings  on  offer  of  Defendant 60 

Commencement  of  Actions 34 

Common  Carriers 107 

Complaint,  on  whom  to  be  Served 35 

Confession  of  Judgments 54 

Contracts 114 

Corporations 90 

Costs 68 

Courts 21 

"      their  Jurisdiction 21 

"      When  and  Where  Held 24 

Currency  Judgments 56 

Deceased  Persons— Estates  of 75 

Depositions 92 

Descents 80 

Estates  of  Deceased  Persons 75 

Examination  of  Judgment  Debtor 66 

Executions 59 

Executions — Proceedings  Supplementary  to 66 

Exemptions  from  Execution 60 

Form  of  Civil  Actions .  38 

Fraudulent  Transfeis 124 

Gold  Coin  Judgments 56 

Guaranty  and  Suretyship 110 

Homesteads 89 

Injunctions 52 

Insolvency 126 

Insolvency — Involuntary 137 

Insolvency— Voluntary. 126 


I 


INDEX. 


383 


Paoi. 

Interest 106 

Joint  Debtors— ProceedingB  Against 66 

Judgments 62 

Jndgmonts  after  Verdict 66 

Judgments  by  Confession 64 

Judgment  by  Default  in  Justice's  Court 67 

Judgments  injustices'  Courts 67 

Judgments  in  Justices'  Courts  other  than  by  Default , 68 

Judgments  in  Replevin 56 

Judgment  Liens 57 

Judgment  Liens,  Justices' CourtH 50 

Judgment  on  Proceedings  without  Action 55 

Judgment  on  Failure  to  Answer , 53 

Judicial  Records 94 

Judicial  Records— How  Proved 94 

Jurisdiction  of  Courts 21 

Letter  of  Credit 112 

Liens .'....  87 

Liens  for  Salaries  and  Wages 86 

Liens  of  Mechanics'  and  others  upon  Real  Estate 84 

Limitation  of  Civil  Actions 31 

Married  Women 102 

Mechanics'  Liens 84 

Minors 104 

Mode  of  talcing  Testimony  of  Witnesses 92 

Mortgages  of  Personal  Property 107 

Negotiable  Instruments 115 

New  Trials 74 

Parties  to  Suits 34 

Partnerships 99 

Personal  Property — Mortgages  of. 107 

Place  of  Trial,  Civil  Actions 27 

Pleadings 38 

Pleadings — Provisions  in  Justices'  Courts 41 

Pledge 109 

Principal  and  Agent 123 

Proceedings  on  Offer  of  Defendant  to  Compromise 56 

Pioceedings  Supplementary  to  Execution 66 

Promissory  Notes  see  Negotiable  Instruments 115 

Publication — Service  by 36,  37 

Redemption 63 

Replevin— see  Claim  and  Delivery 48 

Replevin — Judgment  in 56 

Salaries — Liens  for 86 

Sale 113 

Sale  of  Real  Estate — when  Absolute  or  not 63 

J3aleof  Real  Estate— Certificate  of. 63 


334 


INDEX. 


Paob. 

Sale  on  Execution 63- 

Sale— when  Fraudulent 124 

Security  for  Costs 68 

Service  by  Publicetior... ,..86,87 

Sole  Traders. 103 

Stoppage  in  Transit ;. 106 

Submission  of  Controversy  without  Action 56 

Summons— on  Whom  to  be  Served 85 

Summons — on  Whom  to  be  Served  in  Justices'  Courts 37 

Summons — Service  When  to  be  Made  in  Justices'  Courts , 8V 

Summons — Service  by  Whom  Made  in  Justices'  Courts 37 

Summons — Who  may  Serve 35 

Summons— Within  What  Time  to  Issue 35 

Suretyships 110 

Terms  of  Courte 24 

Circuft  Court  U.  S 27 

District  Courts 26 

.  Di.«trict  Court  U.  S 27 

Justices'  Courts 27 

Probate  and  County  Courts 26 

Supreme  Court 24 

Testimony  of  Witnesses  by  Affidavit 92 

Time  of  Holding  Courts 24 

Trial  of  Civil  Actions— Where  to  be  Tried 27 

Verification  of  Pleadings 41 


IDAHO. 


Part  VI. 


Acknowledgments 208 

Affidavits— Before  Whom  to  be  Taken 213 

Answer — Time  Allowed 198 

Appeals 202 

Arrest  in  Civil  Actions 197 

Attachments 196 

Bankruptcy , 216 

Chattel  Mortgages 212: 

Commencement  of  /..ctions 192 

Corporations 211 


INDEX. 


^5 


Courts 191 

Courts— Terms  of. 191 

Courts — Their  Jurisdiction 191 

Deceased  Persons— Estates  of. ...204 

Depositions 207 

Estates  of  Deceased  Persons 204 

Examination  of  Judgment  Debtor 201 

Executions 199 

Exemptions  from  Execution 19& 

Homesteads 203 

Insolvency 216 

Interest  and  Usury 213 

Judgments 198 

Judgment  Liens 198 

Judicial  Records 208 

Jurisdiction  of  Courts 191 

Liens  of  Judgments 198 

Limitation  of  Civil  Actions 194 

Limited  Partnerships 209 

Married  "Women., 210 

Mortgages  of  Persorial  Property 212 

Partnerships— Limited 209 

Place  of  Trial  of  Civil  Actions 198 

Proceedings  Supplementary  to  Execution 201 

Redemption ..,,„„„,,„., 201 

Sales—Under  Execution 200 

Security  for  Costs 202 

Sole  Traders 214 

Ten.  s  of  Courts 191 

Time  Allowed  to  Answer 193 

Tiial— Place  of. 193 

Usury 213 


JURISDICTION  OF  U.  S.  COURTS. 


Part  II. 


Courts 19 

Jurisdiction  of  Courts 19 

Removal  of  Suits  into  U.  S.  Courts 19 


336 


INDEX. 


MONTANA. 


Part  VIII. 


Page. 

Acknowledgments 247 

Answer— Time  Allowed 240 

Appeals , 245 

Arrest  in  Civil  Actions 242 

Attachments 242 

Bankruptcy 249 

Chattel  Mortgages 248 

Corporations 248 

Courts 239 

Courts— Terms  of 239 

Courts  and  their  Jurisdiction 239 

Deceased  Persons— Estates  ot 245 

Depositions , 246 

Estates  of  Deceased  Persons 245 

Jlxaminatioii  of  Judgment  Debtor 244 

Executions 243 

Exemption  from  Execution 243 

Insolvency 249 

Interest 249 

Judgment  Liens 243 

Judicial  Records , 247 

Jurisdiction  of  Courts 239 

Liens  of  Judgments 243 

Limitation  of  Actions 241 

Limited  Partnerships 247 

Married  Women 248 

Partnerships— Limited 247 

Place  of  Trial  of  Civil  Actions 240 

Proceedings  Supplementary  to  Execution 244 

Redemption* 243 

Sale  under  Execution 243 

Security  for  Costs 245 

Termaof  Courts •. 239 

Time  Allowed  to  Answer 240 

Trial,  Place  of. 240 

Usury 249 


^ 


INDEX. 


387 


NEVADA. 
Part  IV. 


Paob. 


Acknowledgments 160 

Affidavits— Before  Whom  to  be  Taken 161 

Answer — Time  Allowed 145 

Appeals 153 

Arrest  in  Civil  Actions 149 

Attachments 148 

Bankruptcy 165 

Bills  of  Exchange 164 

Chattel  Mortgages 163 

Court? 141 

Courts— Terms  of 141 

Courts — Their  Jurisdiction 141 

Corporations 162 

Deceased  Persons — Estates  of 1  *4 

Depositions 156 

Depositions  Taken  Out  of  the  State 158 

Estates  of  Deceased  Persons —     154 

Examination  of  Judgment  Debtor 152 

Exemptions  from  Exi'cution ^'JO 

Executions ^^ 

Homesteads 155 

Insolvency 156 

Interest  and  Usury 168 

Joint  Debtors— Release  of. ••• 166 

Jurisdiction  of  Courts. •  ...141 

Judgments  and  Judgment  Liens 150 

Judicial  Records— How  Proved 159 

Liens  of  Judgments 150 

Limitation  of  Actions 146 

Limited  Partnerships 161 

Married  Women 162 

Mortgages  of  Personal  Property 163 

Mortgages  of  Real  Property 164 

Partnerships— Limited 161 

Place  of  Trial 1*5 

Proceedings  Supplementary  to  Execution 152 

Promissory  Notes 164 

Publication— Service  by 145 


338 


INDEX. 


Paob 

Bedemption i 152 

Release  of  Joint  Debtors 165 

Sale  under  Execution 152 

Security  for  Costs 153 

Service  by  Publication 145 

Terms  of  Courts 141 

Time  Allowed  to  Answer 145 

Trial— Place  of. 145 

Usury 163 

Witnesses 156 


OREGON. 


Part  V. 


Acknowledgments 185 

Actions— Commencement  of. 172 

Actions— Place  of  Trial 173 

Answer- Within  What  Time 172 

Appeals..... 179 

Arrest  in  Civil  Actions 175 

Attachments 175 

Bankruptcy 189 

Chattel  Mortgages 188 

Commencement  of  Suits 172 

Courts  and  Jurisdiction 169 

Courts— Terms  of 170 

Corporations 188 

Deceased  Persons — Estatesof. «. 180 

Depositions 188 

Descent  of  Personal  Property 182 

Descent  of  Real  Property,... 181 

Dower 183 

Estates  of  Deceased  Persons 180 

Examination  of  Judgment  Debtor 178 

Executions 177 

Exemptions  from  Execution 177 

Homesteads 188 


INDEX.  339 

Paob. 

Insolvency 189 

Interest 189 

Judgment  Liens 176 

Judicial  Records 185 

Jurisdiction  of  Courts 169 

Liens  of  Judgments 176 

Limitation  of  Actions 173 

Limited  Partnerships 186 

Married  Women 187 

Mortgages  of  Personal  Property 188 

Partnerships — Limited 186 

Place  of  Trial  of  Civil  Actions 173 

Proceedings  Supplementary  to  Execution 178 

Redemption 177 

Sak— Under  Execution 177 

Security  for  Costs 178 

S'lits— Commencement  of. 172 

Summons 172 

Terms  of  Courts 170 

Usury 189 


UTAH. 


Par-t  XI. 


Acknowledgments 812 

Answer—Time  Allowed 299 

Appeals 306 

Arrest  in  Civil  Actions 300 

Attachments 300 

Bankruptcy 315 

Chattel  Mortgages 315 

Commencement  of  Suits 299 

Corporations 814 

Courts 297 

Courts— Place  of  Holding 298 

Courts— Terms  of. 298 

Courts— Their  Jurisdiction 297 


Z 


340 


INDEX. 


Paoe 

Deceased  Penong-^Estates  of 307 

Depositions. .> 309 

Estates  of  Deceased  Persons 807 

Examination  of  Judgment  Debtor 304 

Executions 302 

Executions— Proceedings  in  Aid  of 304 

Exemptions 302 

Homesteads 308 

Insolvency 316 

Interest  and  Usury 815 

Judgments 301 

Judgment  Liens 301 

Judicial  Records— How  Proved 811 

Jurisdiction  of  Courts 1297 

Liens  of  Judgments 301 

Limitations  of  Actions 299 

Married  Women 314 

Mortgages  of  Personal  Property 815 

Partnerships 818 

Partners — How  may  be  Sued,  &c 818 

Partners— Liability  of  Private  Property  tor  Firm  Debts 813 

Partners — Assignment  and  Effect 313 

Proceedings  in  Aid  of  Executions 304 

Redemption 304 

Sale— Under  Execution , 302 

Security  for  Costs 305 

Terms  of  Courts 298 

Time  Allowed  to  Plead  or  Answer 29& 

Usury 315 


WASHINGTON   TERRITORY. 


Part  IX. 


Acknowledgments 268 

Answei^Time  Allowed 264 

Appeals  and  Writs  of  Error 264 

Arrest  in  Civil  Actions 258 

Attachments 257 


1 


Paoi 
....307 
,...309 
...807 
...304 
...302 
...304 
..  302 
...308 
...315 
..815 
..801 

..sol 

.811 

..1597 

..801 

..299 

..814 

.815 

.313 

.813 

.313 

.313 

.304 

.304 

.302 

,806 

,298 

29& 

31& 


INDEX.  JyUL 

Paoi. 

Bankruptcy 272 

Chattel  Mortgages , 271 

CJommencement  of  Suits 253 

Corporations 270 

Courts 251 

Courts— Terms  of. 252 

Courts — Their  Jurisdiction 251 

Courts— Where  Held 252 

Deceased  Persons— Estates  of. 265 

Depositions 266 

Estatesof  Deceased  Persons 265 

Examination  of  Judgment  Debtor 263 

Executions 260 

Exemptions  from  Execution 261 

Homesteads 266 

Insolvency 272 

Interest 271 

Judgments 260 

Judgment  Liens 260 

Judicial  Records  of  other  States — How  Proved 288 

Jurisdiction  of  Courts 2.51 

Liens  of  Judgments 260 

Limitation  of  Actions 255 

Limited  Partnerships 270 

Married  Women , 270 

Mortgages  of  Personal  Property 271 

Partnerships — Limited 270 

Place  of  Trial— Civil  Action 255 

Proceedings  Supplementary  to  Execution 263 

Redemption 263 

Sale— Under  Execution 262 

Security  for  Costs 264 

Sole  Traders 270 

Terms  of  Courts 252 

Time  Allowed  to  Answer.... 253 

Trial-Place  of. 255 

Writs  of  Error 264 


.268 
.254 
.264 
.258 
.257 


842 


INDEX. 


WYOMING. 


Part  VII. 

Paor. 

Acknowledgments 233 

Answeiv-Time  Allowed 222 

Appeals 228 

Arrest  in  Civil  Actions ,,^ 226 

Assignments 236 

Attachments 228 

Chattel  Mortgages 236 

Commencement  of  Actions 222 

Courts 221 

Courts— Terms  of  and  Where  Held 222 

Courts— Their  Jurisdiction 221 

Deceased  Persons— Estates  of 228 

Depositions 232 

Descents  and  Distribution  of  Property 229 

Estates  of  Deceased  Persons 228 

Examination  of  Judgment  Debtor , 227 

Executions 226 

Exemptions  fW)m  Execution 226 

Interest 236 

Judgment  Li«ns 226 

Judicial  Records 233 

Jurisdiction  of  Courts 221 

Liens  of  Judgments 226 

Limitations  of  Actions 223 

Limited  Partnerships 234 

Married  Women 235 

Mortgages  of  Personal  Property 236 

Partnershins— Limited 234 

Place  of  Trial  of  Civil  Actions 222 

Proceedings  in  Aid  of  Executions 227 

Redemption 226 

Sale  under  Execution 226 

Security  for  Costs 228 

Terms  of  Courts 222 

Time  to  Answer 222 

Trial— Place  of. 222 

Usury  286 


^Jk^ 


Paob. 

..283 

..222 

..228 

..226 

..286 

..223 

..236 

..222 

..221 

..222 

,.221 

..228 

.232 

.229 

.228 

.227 

.226 

.226 

.236 

.226 

.233 

.221 

.226 

.223 

.234 

.235 

.236 

.234 

.222 

.227 

.226 

,226 

,228 

,222 

222 

222 

286 


'5   I 


